Opinion
14-P-637
12-18-2015
ELIZABETH EMERY v. THOMAS K. STURTEVANT.
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
Thomas K. Sturtevant (husband) appeals from judgments arising out of divorce proceedings, asserting that the judge erred in (1) attributing income to him, (2) failing to reduce his child support obligation, (3) failing to eliminate his alimony obligation, and (4) calculating alimony arrears. Elizabeth Emery (wife), maintains in her cross appeal that the judge erred in permitting the husband to amend his first notice of appeal to include the judgments of dismissal. The central factual dispute at trial and in the subsequent proceedings in this case was whether the husband voluntarily resigned his position as Head of School at a private high school or whether he left that position involuntarily and was therefore compelled to take a position out of State at a considerable salary reduction. We conclude that the record before us does not contain adequate findings of fact to support the judge's conclusion that the husband's reduction in salary was voluntary. Accordingly, we vacate the judgments and remand the matter to the Probate and Family Court for further proceedings consistent with this opinion.
Background. 1. Northfield Mount Hermon. The parties were married on March 21, 1992, and have three children, born in 1994, 1996, and 2000. In April of 2003, the husband accepted a position as Associate Head of School at Northfield Mount Hermon School (NMH) in Gill, Massachusetts, where the family was given a full-time residence. By 2010, the husband was earning $350,000 per year with the title "Head of School" and "Chief Executive Officer." During that year, the husband was involved in discussions with the chairman of the NMH's board of trustees to extend his employment agreement. In April of 2011, the husband informed the chairman of an extramarital affair that he had engaged in with a subordinate, and which lasted from December of 2009 through November of 2010. It resulted in the birth of a child. All discussion of contract extension ceased at this point.
On May 3, 2011, the husband wrote a letter to the chairman, stating: "With appreciation and optimism for Northfield Mount Hermon, I have decided to step down as head of school at the end of this academic year for personal reasons." The letter was posted on the school's Web site, and the chairman responded with a letter, dated the same day, stating:
"It is with deep sadness that I accept your resignation effective at the end of the school year. It is hard to imagine that the Northfield Mount Hermon of today could have existed without your spirit and your vision for the school, so strong in purpose and clear in intent. Your tenure has been full of hard work and challenge, as exhausting in scope as they have been exhilarating in results."The husband left the campus in May of 2011. His severance package allotted monthly payments of his base annual salary of $350,000 for twelve months (through June 30, 2012), plus other benefits, increasing its total value to $489,737. He began looking for a new position in June of 2011, supplementing his severance package with proceeds from consulting work.
2. Trial. The trial of the divorce action was held on May 17 and 18, 2012. The husband represented himself. The amended judgment of divorce nisi ordered that the husband pay to the wife (1) weekly child support in the amount of $780 and (2) general term alimony of $2,481 per week.
On May 30, 2012, two days after the conclusion of the trial, but prior to entry of judgment, the husband received an offer to be the founding Head of School of the SEED School of Cincinnati, Ohio. He was offered a starting salary of $135,000. Although he maintained he was searching for employment, the husband had not received any other offers since leaving NMH.
3. Modification and contempt judgments. On July 23, 2012, the husband filed separate complaints for modification of child support and alimony, alleging that he had experienced a material change in his income. The wife filed a complaint for contempt dated September 10, 2012. The judge entered a judgment (as amended), finding the husband in contempt for failure to pay child support and alimony, and established combined total arrearages for both at $10,248 as of September 27, 2012.
A modification hearing was held on October 17, 2013. The judge dismissed the husband's complaints to modify both the alimony order and child support. In the judgment he noted that:
"Of particular relevance is Exhibit #21 admitted into evidence upon the agreement of the parties. Exhibit #21 is a letter from the Plaintiff to his former employer, NMH, in which he states "with appreciation and optimism for Northfield Mount Hermon, I have decided to step down as head of school at the end of this academic year for personal reasons."The judge also concluded that, "[t]he evidence warrants a finding that the Plaintiff's current actual earnings are less than his potential and demonstrated earning capacity. . . . The Plaintiff's reduced income is based solely on his voluntary decision to resign from NMH."
On October 24, 2013, the judge entered a further judgment of civil contempt, establishing alimony arrearages in the amount of $90,710.91 as of October 11, 2013, and ordered that the net proceeds from the sale of the husband's yacht be applied toward the arrearage. The wife filed another complaint for contempt on November 15, 2012, on which the judge found the husband in contempt for failure to pay general term alimony in the amount of $51,085 accrued as of January 18, 2013. On March 28, 2013, the judge entered a further judgment of contempt against the husband, ordering him to pay alimony and child support arrearages of $54,346 and attorney's fees of $2,250. On January 24, 2014, the wife filed another complaint for contempt, seeking alimony arrearages of $94,076.13. After a hearing, a new judge declined to find the husband in contempt, concluding that he did not have liquid assets from which to pay the arrearages and that the husband expected to soon be out of work. Nevertheless, the judge did "protect the Plaintiff's interest in said arrears," establishing them at $113,924.13 as of March 20, 2014.
The husband filed a notice of appeal from this judgment and moved to consolidate this appeal with the appeal from the dismissal of his complaints for modification and his wife's cross appeal.
Discussion. The husband's arguments regarding the judge's attribution of income, and his refusal to reduce the child support obligation and eliminate the alimony obligation, center on the circumstances of the husband's departure from NMH. "To be successful in an action to modify a judgment for alimony or child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment." Pierce v. Pierce, 455 Mass. 286, 293 (2009) (quotation omitted). See Morales v. Morales, 464 Mass. 507, 510-512 (2013) ("[W]hen a complaint seeking modification of a child support order is filed, modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the guidelines"). A change in employment resulting in a reduction in income of a support provider may justify downward modification of a support order where the change was either involuntary, or made voluntarily in good faith. Schuler v. Schuler, 382 Mass. 366, 373 (1981).
"Because every modification judgment requires findings of fact, conclusions of law, and the exercise of discretion, our inquiry on review requires careful consideration of the facts and circumstances of an individual case." Pierce v. Pierce, supra. Although we defer, in large measure, to the judge who saw the witnesses and heard the evidence, Bush v. Bush, 402 Mass. 406, 411 (1988), we also consider whether the judicial determination is supported by subsidiary factual findings based on the evidence. See, e.g., Hassey v. Hassey, 85 Mass. App. Ct. 518, 528 (2014). In our view, the judge's conclusion that the husband's resignation from NMH was voluntary is inadequately supported by subsidiary factual findings. In addition, we are unable to discern the factual basis for the amount of income imputed to the husband.
1. Voluntariness of loss of employment. The determination of the circumstances under which the husband left NMH required the judge to determine the credibility of the witnesses and to weigh the evidence. Bearing upon the issue in this case was the following evidence: (1) the husband's letter resigning from NMH; (2) the husband's trial testimony that this letter was intended to "smooth the waters" with the NMH community; and (3) the fact that the resignation was preceded by the husband's extramarital affair, and his disclosure of that affair to the chairman of NMH's board. While the judge explicitly referenced the resignation letter in his memorandum dismissing the husband's complaints for modification, and concluded that the resignation was voluntary, he made no other subsidiary findings leaving it unclear whether the judge credited or refused to credit the husband's testimony and characterization of the evidence. Instead, the memorandum states only in conclusory terms: "The Plaintiff's reduced income is based solely on his voluntary decision to resign from NMH." Without the benefit of specific, additional findings by the judge, we cannot assess whether his conclusion as to voluntariness is adequately supported. See Ulin v. Polansky, 83 Mass. App. Ct. 303, 306-307 & n.6 (2013) ("The judge did not specify that he rejected the testimony, nor do we believe such a rejection is necessarily implied in the judge's findings or analysis").
2. Imputation of income to the husband. Attribution of income may be appropriate when a judge determines a career change is voluntary. Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291 (1996). In other words, a judge may consider a party's potential income, as opposed to actual income, when the actual income is limited by the party's voluntary action. See Dwight v. Dwight, 52 Mass. App. Ct. 739, 744 (2001), and cases cited. See also C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 153 n.5 (2008) (citing Child Support Guidelines II-H and applying same rationale to alimony context). Such attribution should be accompanied by a specific finding as to whether the party has exercised reasonable efforts in his or her employment search. See Ulin v. Polansky, supra at 306-307.
Even if we were to assume, arguendo, that the husband's change in employment was indeed voluntary, we cannot properly affirm the judge's decision to attribute income in this case. Based upon the judge's dismissal of the husband's complaints for modification, we infer that he attributed to the husband all of the income earned at the time of the original divorce judgment setting the terms of support payments. However, the record is devoid of any finding with regard to the reasonableness of the husband's job search. We cannot discern whether the judge credited any of the ample evidence presented by the husband at trial of the extent of his job search following his resignation from NMH. Nor can we decide that the amount of the attribution was appropriate. As we stated in C.D.L. v. M.M.L., supra at 155:
"It is by far better practice for a judge, in attributing income to a party for purposes of alimony (or child support), to specify the amount, or define a reasonably finite range, of the income to be so attributed. Such specification sets defined economic points for the parties, serves as a marker should a party later seek to modify the alimony award, and provides a benchmark memorialized within the trial judge's rationale and findings which will facilitate appellate review."
Unlike in C.D.L., we are unable to evaluate the correctness of the judge's imputation of income without the benefit of the subsidiary findings.
3. Alimony arrears in the amount of $113,924.13. Probate court judges have broad power and authority to modify alimony judgments not only as to future payments, but also as to arrears, in both modification and contempt proceedings. See Pierce v. Pierce, 455 Mass. at 305-306; Kennedy v. Kennedy, 17 Mass. App. Ct. 308, 312 (1983). Here again, we cannot determine that it was within the judge's discretion to allow arrears to continue accruing after the complaints for modification were filed without the benefit of subsidiary findings relating to the judge's decision to impute income to the husband.
4. Amendment of notice of appeal. The wife's cross appeal claims that the judge abused his discretion by allowing the husband to amend his first notice of appeal.
The order for judgment directing the dismissal of both of the husband's complaints for modification was issued on October 24, 2013, and entered on October 31, 2013. On November 25, 2013, the husband's new appellate counsel, apparently unaware that separate final judgments dismissing both complaints also had been entered on October 31, filed a notice of appeal (NOA) solely from the order for judgment. On December 12, 2013, the husband filed his motion to file an amended NOA together with the amended NOA, expressly seeking to appeal from the final judgments.
By order dated December 23, 2013, the judge allowed the motion to amend the husband's notice of appeal, to be filed by December 30. On December 30, 2013 -- sixty days after entry of the final judgments and thirty days after expiration of the formal appeal period -- the husband formally filed his amended NOA. In view of the fact that the husband had already filed a NOA from the orders for judgment, we conclude that it was within the judge's discretion to allow the husband's motion to amend the NOA. See GTE Prod. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995); Hodge v. Klug, 33 Mass. App. Ct. 746, 750-751 (1992).
Conclusion. The judgments of dismissal dated October 24, 2013, and docketed October 31, 2013, are vacated. The judgment on complaint for contempt, dated April 18, 2014, and docketed April 23, 2014, is vacated. The case is remanded for further proceedings consistent with this opinion.
Whether there should be additional evidence taken in this case is a matter within the judge's discretion.
So ordered.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 18, 2015.