Opinion
14-P-841
06-03-2015
SCOTT P. DOONAN v. DEBORAH A. DOONAN.
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
Scott P. Doonan (husband) appeals from a judgment of divorce nisi and from the denial of his motion to amend the judgment. The trial judge attributed additional income to Deborah A. Doonan (wife), who works as a part-time bank teller, on the basis that her earning capacity exceeds her current weekly income. The husband's first contention is that the judge erred in not attributing more income to the wife. Despite finding that the wife "is capable of earning $600.00 per week as a bank teller or $720.00 per week as a phlebotomist," the trial judge imputed an income of only $500 per week. In denying the husband's motion to amend the judgment, the trial judge explained "there was no credible evidence that [the wife] would have the immediate ability, or desire, to acquire employment as a phlebotomist . . . [and] the Court was not certain that [the wife] would have the ability to acquire sufficient hours [as a bank teller] to earn [full-time wages]." The judge was within his discretion in considering "the availability of employment," as such is explicitly approved as a relevant consideration by the Massachusetts Child Support Guidelines in their discussion of attributing income.
Next, the husband argues that the judge abused his discretion in calculating child support and alimony. We disagree. The trial judge used the husband's gross income and the wife's imputed income to first calculate child support obligations from the wife to the husband, then alimony payments from the husband to the wife, finally combining the two and ordering the husband to pay the wife a reduced weekly alimony payment (reduced by the aforementioned child support owed to the husband). The husband argues that the judge should have calculated two separate alimony and child support payment combinations, and then chosen the more equitable one, as suggested by one sentence in Massachusetts Child Support Guidelines § II-A (2013). Essentially, he argues that the guidelines require that method. However, § II-A explicitly states that "Judicial discretion is necessary and deviations should be considered." Here, the judge properly exercised his discretion to take another approach, as he concluded that the wife was otherwise unable to meet her projected living expenses under other methods.
Judgment affirmed.
Order denying motion to amend judgment affirmed.
By the Court (Katzmann, Meade, & Rubin, JJ. ),
The panelists are listed in order of seniority.
Clerk Entered: June 3, 2015.