In December of 2014, the Massachusetts Appeals Court had occasion to apply the Alimony Reform Act of 2011.  The case, Vendesky v. Vendesky, involved an appeal of a Probate and Family Court Judgment of Modification by Veronica Vendesky, which Judgment awarded her ex-husband Dmitry alimony.

The parties were divorced in 2007, and in their separation agreement, they each waived any claim to alimony from the other (agreeing to leave the issue open for future consideration), and Dmitry Vendesky agreed to pay child support.  At the time, they were both employed full-time.

After the divorce, Dmitry experienced some health issues that resulted in him being temporarily unemployed, and then employed less than full-time, and at a lower rate of pay.  During the same time period, Veronica’s income from her full-time job increased, and she took on a second part-time job.

In 2009, Dmitry filed a complaint for modification to decrease his child support order, and in 2010, the Probate and Family Court ordered that he no longer had to pay child support.  Then, in 2011, Dmitry filed another complaint for modification, this time requesting an award of alimony.  The Probate and Family Court then awarded alimony, based on Veronica’s income from her full-time job, from her second job, and from attributed hours at her second job that she wasn’t working, but that the judge thought that she could be working if she so chose.

Veronica moved to dismiss the complaint for modification, arguing that there had been no “material change in circumstances” since the 2010 judgment.  That is, Dmitry had been similarly unemployed or under-employed then.  The Appeals Court explained that the appropriate judgment from which to ask if there had been a material change in circumstances was the original divorce judgment.  Otherwise, the Appeals Court noted, there would be an incentive to ask for alimony in every modification proceeding, whether actually needed or not, so as not to foreclose its future availability.

Turning to the merits of the case, the court addressed the amount of the award of alimony, which is defined as the “payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order.”

The Massachusetts General Laws provide that in “determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed.”  What the Probate and Family Court judge had done, was to base alimony not just on Veronica’s full-time job income, but also on the income from the part-time job that she acquired after the divorce, and the judge included income that she wasn’t even earning, because the judge reasoned that she could be working more hours at her second job.

The Appeals Court held that this was legal error under the Alimony Reform Act and Child Support Guidelines.  Specifically, the Alimony Reform Act and Child Support Guidelines provide that although income from overtime or a second job is properly considered in an initial alimony (and child support) calculation, yet

  1. income from a second job or overtime work shall be presumed immaterial to alimony modification if a party is working full-time, and the second job or overtime began after entry of the initial order. L. c. 208, § 54(b); and
  2. if a child support payor obtains a second job or starts working overtime after the child support order entered, then there is a legal presumption that the secondary job or overtime shouldn’t be considered in a future support order. Massachusetts Child Support Guidelines § I-B.

Not only had the Probate and Family Court judge failed to apply the legal presumption that Veronica’s second job income shouldn’t be considered in awarding alimony, but the judge even determined that she was under-employed in her second job!  The Court wisely held that:

a party who works at a full-time or full-time equivalent job may not be found to be “unemployed” or “underemployed” based on the level of compensation received from a second job obtained “after entry of the initial order” unless the judge concludes, based on findings supported by the evidence, that a basis exists for rebutting the presumption of immateriality applicable to the income earned from the second job.

Attorney Kevin D. Quinlan

Uxbridge, Massachusetts

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