Opinion
15-P-232
03-29-2016
SHEILA MARY MACRI v. THEODORE WILLIAM MACRI.
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
Theodore William Macri (husband) appeals from a judgment of support, division of assets, and a parenting plan. Both the husband and Sheila Mary Macri (wife) seek an award of appellate attorney's fees.
The husband contends that the judge improperly ordered him to pay $10,000 per month in unallocated support.
The husband argues that the judge improperly charged $388,410 as advancements against his share of the assets.
Background. We summarize the judge's comprehensive findings, reserving certain details for our analysis of the issues raised on appeal.
The husband and wife were married on May 9, 1998. They resided in New York City where the wife worked for a scientific recruiting company and the husband worked for Bankers Trust Company. In April of 2000, the husband was offered a position with Deutsche Bank in Singapore. The wife decided to attend veterinary school in Prince Edward Island, Canada, and visited the husband in Singapore during her school breaks. Theodore William Macri, III (Teddy), was born on September 14, 2002, in Singapore. The wife took a year off from school and remained in Singapore. The wife then returned to Canada with Teddy to complete veterinary school.
In May, 2005, the wife graduated with a doctor of veterinary science degree and returned to Singapore to be with the husband. During this time, the husband frequently traveled for work and would stay out late entertaining when not traveling. The husband, wife, and Teddy left Singapore in December, 2005, and moved to Hong Kong. In February, 2008, the wife became employed as a veterinary pathologist with the Department of Agriculture, Fisheries, and Conservation in Hong Kong. In 2008, the husband was making over $900,000 annually and the wife earned approximately $54,697.
She worked there until she resigned in June, 2010.
In September, 2008, the wife filed for divorce in Hong Kong. The wife requested that the husband move out of the marital apartment; however, the husband declined and the parties continued to live together until April, 2009. In April, 2009, pursuant to an order by the Hong Kong District Court to which both parties consented, the parties started a "nesting" arrangement. On August 21, 2009, the Hong Kong court issued a judgment granting joint custody of Teddy, with "care and control" to the wife but denied her request to remove Teddy from Hong Kong. On June 9, 2010, the Hong Kong appellate court issued an order allowing the wife to remove Teddy from Hong Kong. On August 28, 2010, the wife moved to Waltham, Massachusetts. The husband moved to Waltham in 2011. Upon returning to the United States, the wife filed the Hong Kong judgment with the Middlesex Probate and Family Court. The husband petitioned the Hong Kong courts to transfer the proceedings to the United States and the Hong Kong District Court stayed the proceedings in Hong Kong. Thereafter, the husband filed the complaints subject to this appeal in the Middlesex Probate and Family Court.
Under this arrangement, Teddy remained in the marital apartment, or the nesting apartment, at all times. One party lived in the apartment with Teddy during parenting time while the other party stayed in the second apartment.
Discussion. A. Standard of review. We review a trial judge's determination of alimony, child support, division of assets, and custody for an abuse of discretion. See Heins v. Ledis, 422 Mass. 477, 480-481 (1996); J.S. v. C.C., 454 Mass. 652, 660 (2009); Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000); Rosenthal v. Maney, 51 Mass. App. Ct. 257, 265 (2001). "Error of law apparent on the record, such as the failure of a judge's findings to support the judge's action or findings that have no support in the evidence, would constitute an abuse of discretion." Freedman v. Freedman, supra.
B. Unallocated support award. The husband argues that the judge abused her discretion when she imputed the husband's income to fashion the unallocated award of $10,000 per month. "In the proper circumstances, '[a] judge is not limited to a party's actual earnings but may . . . consider potential earning capacity' when attributing income." C.D.L., v. M.M.L., 72 Mass. App. Ct. 146, 152 (2008), quoting from Heins v. Ledis, 422 Mass. at 485. Earning capacity, rather than actual earnings, may be considered in awarding support. Canning v. Juskalian, 33 Mass. App. Ct. 202, 206 (1992).
The attribution of income to the husband in this case captures both alimony and child support as unallocated support. However, "the attribution of income in the alimony context is not different in rationale from that in the child support context." C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 153 n.5 (2008). The judge erroneously relied upon the 2009 Massachusetts Child Support Guidelines because the judgment entered was dated December 31, 2013. See 2013 Massachusetts Child Support Guidelines, preamble ("These guidelines shall take effect on August 1, 2013 and shall be applied to all child support orders and judgments entered after the effective date" [emphasis supplied]). The judge should have applied the 2013 Massachusetts Child Support Guidelines, § I-E, attribution of income, which states: "Income may be attributed where a finding has been made that either party is capable of working and is unemployed or underemployed. The Court shall consider all relevant factors including without limitation the education, training, health, past employment history of the party, and the availability of employment at the attributed income level. The Court shall also consider the age, number, needs and care of the children covered by this order. If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order."
We note that the husband argues that "attribution of income is improper here." This ignores that the husband previously asked the court to impute income in both his proposed rationale and theory of the case as well as his proposed judgment.
Here, the judge abused her discretion when she attributed an income of $400,000 annually and awarded unallocated support in the amount of $10,000 a month. The judge found:
"Husband's income has historically been comprised of his base salary as well as large bonuses. Husband's base pay was approximately $150,000.00 per year from 1999 through 2008. Beginning in 2006, Husband earned a guaranteed $100,000.00 bonus in addition to his base pay and he received additional incentive bonuses. In 2009, Husband's base pay was between $175,000.00 and $200,000.00, but after bonuses he earned approximately $751,680.00. In 2010, Husband's base pay was between $250,000.00.00 [sic] and $300,000.00 and after bonuses he earned approximately $817,842.00. Because Husband's income increases so significantly upon the receipt of bonuses, it would be inequitable to attribute his income based solely on his past base pay. Husband's earning capacity is higher than the suggested $150,000.00.It was inappropriate to base the husband's income on earnings he made from another country where, as here, the judge did not receive any expert testimony on the husband's earning potential in the United States and did not have comparable salaries from the husband on which to base the attributed income. See Freedman v. Freedman, 49 Mass. App. Ct. at 521 ("[A] judge's action or findings that have no support in the evidence[] would constitute an abuse of discretion"). We remand this case to the Probate and Family Court for the judge to reconsider and take evidence, in her discretion, of interim earnings and earning capacity and apply the 2013 Massachusetts Child Support Guidelines. See note 5, supra.
"It would also be inequitable to attribute an amount to Husband that is excessive. The Court credits Husband's testimony as to the different opportunities in the United States job market as compared to the job market in Asia. It is not guaranteed that Husband will be able to find a job comparable to his job in Asia. Husband does, however, possess skills and expertise in his field that qualify him for many high-paying jobs in the United States. Therefore, $400,000.00 is a fair attribution of income, based on Husband's work experience and skill set."
C. Asset division. The husband argues that the judge erred in her division of the marital assets. General Laws c. 208, § 34, "grants judges the authority to exercise a broad degree of discretion in assigning 'to either husband or wife all or any part of the estate of the other.'" Adams v. Adams, 459 Mass. 361, 372-373 (2011), quoting from G. L. c. 208, § 34. See Harris v. Harris, 26 Mass. App. Ct. 1004, 1004 (1988) ("General Laws c. 208, § 34, confers broad discretion on a judge in awarding alimony and making equitable property divisions"). "A party's 'estate' by definition includes all property to which he holds title, however acquired. Therefore, this provision gives the trial judge discretion to assign to one spouse property of the other spouse whenever and however acquired." Rice v. Rice, 372 Mass. 398, 400 (1977), citing Bianco v. Bianco, 371 Mass. 420, 422 (1976).
The judge did not err in determining the advancements on each parties' interest. It was within her discretion to assign the earlier support payments from the husband as advancements against his share of the marital estate because they were being paid from the marital assets. The judge considered all mandatory factors in determining the asset division and acted appropriately under her considerable discretion. See Ross v. Ross, 385 Mass. 30, 37 (1982).
The husband also argues that the judge erred by using the term "dissipation" because it implies misconduct. However, dissipation does not need to be tainted by misconduct. See Kittredge v. Kittredge, 441 Mass. 28, 36-37 (2004).
General Laws c. 208, § 34, as amended through St. 1989, c. 559, states, in relevant part: "In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered."
D. Parenting plan. The husband maintains that the judge abused her discretion in revising the parties' parenting plan. A court may modify the judgment of a foreign court as it pertains to the minor child's care, custody, education, and maintenance. See G. L. c. 208, § 29. "When determining child custody awards in general . . . the guiding principle always has been the best interests of the children." Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996). While there is no definitive checklist of what suits the best interests of the children, common factors include:
"consideration of which parent has been the primary caretaker of, and formed the strongest bonds with, the child, the need for stability and continuity in the child's life, the decision-making capabilities of each parent to address the child's needs, and the living arrangements and lifestyles of each parent and how such circumstances may affect the child."El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010).
The judge did not abuse her discretion when she entered a parenting plan that was in the best interest of Teddy. The judge's thoughtful decision represents a careful balancing of facts and judgment that was in the best interest of Teddy. This plan, which included the provision that the wife continue to have primary physical custody of Teddy with reasonable parenting time to the husband, specifically addressed the husband's unique employment situation requiring him to travel to New York biweekly.
E. Attorney's fees. Both the husband and wife seek an award of appellate attorney's fees. We decline to award either party appellate attorney's fees.
Conclusion. We vacate the amended judgment as to the unallocated support order and remand the case to the Probate and Family Court for further consideration of that matter in light of this opinion. The judgment is otherwise affirmed.
So ordered.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 29, 2016.