Opinion
11-P-112
04-09-2012
NELIDA GOLD v. STEVEN GOLD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Nelida Gold (wife) appeals from a supplemental judgment of divorce, issued by a judge in the Norfolk County Division of the Probate and Family Court. She also appeals from the same judge's allowance of Steven Gold's (husband) request for more time to file a notice of appeal from the supplemental judgment. Although the judge produced substantial findings and conclusions in support of her disposition, we must remand the case for further proceedings.
We need not address this issue, as husband has declined to pursue his appeal.
Background. The parties were married in 1998 and divorced in 2009. They have one minor child, of whom the husband has legal and physical custody. The wife was a flight attendant with American Airlines throughout the marriage, and continues to be so employed. The husband works at a family insurance agency, in which he holds a seventeen percent interest. A trial took place over the course of several days, during which the husband, wife, and the wife's expert testified. The judge ultimately ordered the following: the marital estate to be divided equally; the wife to maintain health insurance for the child; the husband to pay uninsured medical expenses up to $700 per year; the wife to pay weekly child support in the amount of $170; and the husband to pay weekly alimony to the wife in the amount of $170.
Discussion. The judge had wide discretion to fashion an alimony award, Drapek v. Drapek, 399 Mass. 240, 243 (1987), and her decision will not be overturned unless it is plainly wrong or excessive. Rice v. Rice, 372 Mass. 398, 402 (1977). The wife argues that the judge abused her discretion in awarding weekly alimony in the amount of $170, because the judge failed to consider the wife's needs.
An alimony award is 'grounded in the recipient spouse's need for support and the supporting spouse's ability to pay.' Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986). 'The standard of need is measured by the 'station' of the parties -- by what is required to maintain a standard of living comparable to the one enjoyed during the marriage.' Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985). The judge found that the parties enjoyed an upper middle class station during their marriage, that the husband's income was likely to decline over the next three years, and that the wife's income has stayed relatively even throughout the marriage. She made no specific finding regarding the wife's needs, even though '[a]n award of alimony is improper absent a finding of financial need on the part of the recipient spouse.' Heins v. Ledis, 422 Mass. 477, 484 (1996).
The wife next argues that the $170 weekly child support award is not supported by the record. While the husband's financial statement attributes $170 per week to the child's activities and therapy, '[t]he judge made no determination of what the child's needs were.' Redding v. Redding, 398 Mass. 102, 109 (1986). 'Moreover, the judge did not discuss how the relative income and liabilities of the husband and wife affected h[er] conclusion.' Ibid. Although the judge stated that she applied the child support guidelines, there is nothing in the record to indicate which figures the judge used or from where those figures derived. Absent an explanation, the judge's child support order cannot stand. Hanify v. Hanify, 403 Mass. 184, 191 (1988).
Conclusion. In these circumstances, we vacate the orders for child support and alimony, and remand the case to the Probate and Family Court for a hearing, findings, and reasoning necessary for determination of the amounts of alimony and child support payments. Pending further proceedings, the current child support and alimony orders shall remain placed as temporary orders.
'Any proceedings necessary to enforce payment are to be brought in the Probate [and Family] Court.' Casey v. Casey, 79 Mass. App. Ct. 623, 636 n.19 (2011), quoting from Kennedy v. Kennedy, 400 Mass. 272, 276 (1987).
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So ordered.
By the Court , (Sikora, Carhart & Sullivan, JJ.),