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16-P-443 Appeals Court
ELIZABETH EMERY vs. THOMAS K. STURTEVANT.
No. 16-P-443.
Franklin. December 2, 2016. - May 12, 2017.
Present: Vuono, Wolohojian, & Shin, JJ.
Divorce and Separation, Modification of judgment, Child support, Alimony, Findings. Parent and Child, Child support. Evidence, Earning capacity. Contempt.
Complaint for divorce filed in the Franklin Division of the Probate and Family Court Department on November 12, 2010.
Following review by this court, 88 Mass. App. Ct. 1118 (2015), complaints for modification, filed on July 24, 2012, were considered by Stephen M. Rainaud, J., and a complaint for contempt, filed on January 24, 2014, was considered by Beth A. Crawford, J.
David H. Lee (Jessica M. Dubin also present) for the husband. Edward F. Dombroski, Jr. (Laura S. Davis also present) for the wife.
VUONO, J. This case, which comes before us a second time,
arises from the complaints filed by the former husband (husband)
for modification of alimony and child support payments and from 2
a series of complaints for contempt filed by the former wife
(wife). The question we must answer is whether it is
appropriate to attribute income to the husband, for purposes of
determining his alimony and child support obligations, where he
resigned from a high-paying position as head of school at a
private institution and accepted a substantially lower-paying
position in the same field following an extensive job search.
We conclude that, under such circumstances, the criteria for
attribution of income have not been met. We therefore remand
this case for a determination of the husband's support
obligations based on his "present income." Flaherty v.
Flaherty, 40 Mass. App. Ct. 289, 291 (1996).
Background. A full recitation of the facts is necessary
for our discussion.1 The parties were divorced on June 18, 2012,
following twenty years of marriage. During the marriage, the
wife was the primary caregiver for the parties' three children,
while the husband worked in the private education sector, making
"considerable professional advancements over the years." On
July 1, 2003, the husband began working as associate head of
school at Northfield Mount Hermon School (NMH), located in Gill,
1 We summarize the uncontested findings of fact entered in support of the judgments challenged on appeal, and "[w]here necessary to provide context or meaning, we have supplemented our summary" with competent evidence in the record appendix and excerpts from this court's decision in the related case of Emery v. Sturtevant, 88 Mass. App. Ct. 1118 (2015). M.C. v. T.K., 463 Mass. 226, 229 n.2 (2012). 3
earning a starting annual salary of $128,500. He was promoted
to head of school in less than one year, and by all accounts, he
was extremely successful and effective in the performance of his
job duties. By 2010, the husband's base salary had increased to
$350,000. In addition to his base salary, the husband received
numerous benefits from NMH, including, but not limited to,
annual bonuses, deferred compensation, "free housing in an
eight-bedroom, five-bathroom, three-story mansion, with all
maintenance, cleaning and upkeep provided by the school," free
meals through the school's dining service, use of a vehicle, and
generous private school tuition waivers for the parties'
children. In 2010, the value of the husband's total
compensation package from NMH exceeded $450,000.
The husband's position as head of school was governed by a
series of three-year employment contracts; each contract was
subject to extension at the discretion of NMH's board of
trustees. The husband's initial contract guaranteed his
employment through June 30, 2007. His contract was thereafter
extended twice, ultimately guaranteeing his employment through
June 30, 2012.
In 2010, the husband was involved in discussions with Mark
Chardack, the chairman of NMH's board of trustees, to extend his
employment contract once again. To that end, in December, 2010,
Chardack sent a letter to the husband memorializing their 4
"mutual intention . . . to enter into a formal employment
agreement before the end of the current School year" extending
the husband's "employment as Head of School through June 30,
2015." As it turned out, however, the husband was never
presented with a new contract.
In April, 2011, the husband informed Chardack that he had
engaged in an extramarital affair with a subordinate, which had
ended in November, 2010. In the following weeks, the husband
and Chardack spoke several times. The content of those
discussions was not disclosed at trial. On May 3, 2011, the
husband sent a letter to Chardack announcing that he was
resigning from NMH due to "personal reasons." Chardack
responded with a letter, dated the same day, indicating that he
accepted the husband's resignation "with deep sadness." The
husband stopped working at NMH immediately, although the school
year had not yet ended and his employment did not officially
terminate until June 30, 2011.2 In connection with his departure
from NMH, the husband received a severance package which
continued his base salary of $350,000 for one year (through June
30, 2012), along with some additional benefits. The husband
began looking for a new full-time position in June, 2011,
supplementing his severance package with proceeds from temporary
consulting work.
2 The school year ended in late May. 5
The divorce proceedings. By the time of the husband's
departure from NMH, the parties had already separated and the
wife had initiated divorce proceedings in the Probate and Family
Court. A two-day trial was held before a judge (divorce judge)
in May, 2012, at which the wife was represented by counsel and
the husband represented himself. The divorce judge issued a
judgment of divorce nisi dated June 18, 2012, as amended on July
17, 2012, ordering the husband to pay weekly child support of
$780 and weekly general term alimony of $2,481 to the wife. The
judge calculated the support payments using the husband's
reported gross weekly income of $10,436.58.3
The husband's complaints for modification. On May 30,
2012, after the conclusion of the divorce trial but before the
entry of judgment, the husband was offered a position as head of
school at the SEED School of Cincinnati, Ohio (SEED), at a
starting annual salary of $135,000. On July 24, 2012, the
husband filed two separate complaints for modification seeking a
reduction in his child support and alimony obligations on the
basis that his new income was substantially lower than his
income at the time of the divorce. Following a trial, which was
held before the divorce judge, the complaints were dismissed.
3 The judge relied on the gross weekly income figure reported on the husband's financial statement filed at the start of the divorce trial. That figure included $3,705.81 derived from the husband's temporary consulting work, and $6,730.77 from the husband's severance pay from NMH. 6
In his memorandum and order dated October 24, 2013, the divorce
judge concluded, without making subsidiary findings, that no
material change in circumstances had occurred because the
husband's "actual earnings [from SEED] are less than his
potential and demonstrated earning capacity," and the reduction
in the husband's income was caused by "his voluntary decision to
resign from NMH." The husband appealed from the dismissal of
his complaints for modification.
The wife's complaints for contempt. In addition to the
modification proceedings initiated by the husband, the parties
were involved in numerous contempt proceedings brought by the
wife. Between September, 2012, and January, 2014, the wife
filed three separate complaints for contempt alleging that the
husband had fallen behind in his child support and alimony
payments.4 The first two complaints were adjudicated by the
divorce judge, who found the husband to be in contempt and
4 On September 11, 2012, the wife filed a complaint for contempt alleging that the husband was behind on his child support and alimony payments. On November 14, 2012, the divorce judge issued an amended judgment of civil contempt, finding the husband in contempt and establishing his combined child support and alimony arrearages at $10,248 as of September 27, 2012. The wife filed a second complaint for contempt in November, 2012. On February 14, 2013, the divorce judge issued a judgment of civil contempt and established the husband's total arrearages at $51,085 as of January 18, 2013. On March 27, 2013, the divorce judge issued a further judgment of civil contempt, establishing the husband's total arrearage at $54,346. Finally, on October 24, 2013, the divorce judge issued a further judgment of civil contempt establishing the husband's total arrearage at $90,710.91 as of October 11, 2013. 7
established the husband's total arrearage at $90,710.91 as of
October 11, 2013. The wife's third complaint for contempt,
filed on January 24, 2014, was adjudicated by a different judge
of the Probate and Family Court (contempt judge). On April 18,
2014, the contempt judge issued a judgment establishing the
husband's alimony arrearage at $113,924.13 as of March 20, 2014
(the husband was current with his child support payments at that
point), while declining to find the husband in contempt due to
his inability to pay. Specifically, the contempt judge found
that the husband's expenses exceeded his net income by $102 per
week and that he did not have any liquid assets available to
satisfy his alimony arrearage. The husband also appealed from
the April 18, 2014, judgment.
The first appeal and remand. The husband's appeals were
consolidated and came before a different panel of this court.
In an unpublished memorandum and order issued pursuant to our
rule 1:28, the panel remanded the case, holding that the divorce
judge's failure to make adequate findings to support his
conclusion that the husband's reduction in salary was voluntary
and the absence of findings with regard to the reasonableness of
the husband's job search prevented an assessment of the validity
of the judge's ruling regarding the attribution of income.5
5 The panel further noted that it was unable to "discern whether the judge credited any of the ample evidence presented 8
Given the lack of subsidiary findings to support the divorce
judge's attribution of income, the panel was also unable to
determine whether "it was within the [contempt] judge's
discretion to allow arrears to continue accruing after the
complaints for modification were filed." Accordingly, the panel
vacated all three judgments and, as we have noted, remanded the
case for further proceedings consistent with its decision.
Shortly thereafter, on January 18, 2016, without taking
additional evidence,6 the divorce judge issued a "Judgment After
Remand" setting forth findings of fact in support of his
decision to dismiss the husband's complaints for modification.
One month later, on February 16, 2016, also without further
hearing, the contempt judge issued a "Judgment on Complaint for
Contempt (After Remand)," again declining to find the husband in
contempt in light of his inability to pay, while omitting a
specific arrearage amount in the judgment. The present appeal
followed.
Discussion. The husband challenges (1) the dismissal of
his complaints for modification on the ground that the
attribution of income based on his prior earning capacity was
by the husband at trial of the extent of his job search following his resignation from NMH," or whether "the amount of the attribution was appropriate." 6 The panel acknowledged that "[w]hether there should be additional evidence taken in this case is a matter within the judge's discretion." 9
improper, and (2) the contempt judge's failure to eliminate the
husband's alimony arrearages and ongoing alimony payments in
light of her finding regarding the husband's inability to pay.
We address each claim in turn.
1. Modification. We review a judge's denial of a party's
request for modification of alimony and child support for an
abuse of discretion. See Pierce v. Pierce, 455 Mass. 286, 293
(2009); Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012). A
party seeking to modify an existing alimony award "must
demonstrate a material change of circumstances since the entry
of the earlier judgment." Vedensky v. Vedensky, 86 Mass. App.
Ct. 768, 772 (2014), quoting from Schuler v. Schuler, 382 Mass.
366, 368 (1981). See G. L. c. 208, § 49(e).7 "Because alimony
is a creature of statute," Vedensky v. Vedensky, supra at 776
n.11, actions to establish or modify alimony are governed by the
Alimony Reform Act (Act), G. L. c. 208, §§ 48-55. The Act
requires a judge to consider several factors when setting or
modifying an alimony award, including, but not limited to, the
"income, employment and employability of both parties," and the
7 "[G]eneral term alimony may be modified in duration or amount upon a material change of circumstances warranting modification." G. L. c. 208, § 49(e), inserted by St. 2011, c. 124, § 3. "General term alimony" is defined as "the periodic payment of support to a recipient spouse who is economically dependent." G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3. 10
"ability of each party to maintain the marital lifestyle."
G. L. c. 208, § 53(a), inserted by St. 2011, c. 124, § 3.8
Moreover, the Act generally limits the amount of an alimony
award to "the recipient's need or 30 to 35 per cent of the
difference between the parties' gross incomes." G. L. c. 208,
§ 53(b).
In contrast to alimony, "[t]he method for calculating and
modifying child support" is governed both by statute, see G. L.
c. 208, § 28, and by the Massachusetts Child Support Guidelines
(2013) (guidelines). Morales v. Morales, 464 Mass. 507, 509-510
(2013). "Although the guidelines have been subject to periodic
revision since their enactment, an essential premise has
remained constant: that child support should be calculated as a
8 When determining the appropriate duration and amount of alimony:
"[A] court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material."
G. L. c. 208, § 53(a). "A court must consider these same factors in determining whether the amount of alimony should be modified based on a change of circumstances following entry of an earlier judgment for alimony." Pierce v. Pierce, 455 Mass. at 295 (discussing alimony factors set forth in G. L. c. 208, § 34, prior to enactment of Act). 11
percentage of parental income." P.F. v. Department of Rev., 90
Mass. App. Ct. 707, 709 (2016), quoting from M.C. v. T.K., 463
Mass. 226, 232 (2012). The guidelines permit a judge to modify
a child support order if "there is an inconsistency between the
amount of the existing order and the amount that would result
from the application of the child support guidelines"
(inconsistency standard), or if "any other material and
substantial change in circumstances has occurred" (material
change in circumstances standard). Guidelines § III-A.
While the precise methods for calculating and modifying
child support and alimony differ somewhat, both depend in large
part on the parties' financial circumstances. Accordingly, the
central inquiry in a case involving modification of both child
support and alimony is whether, and to what extent, the parties'
financial circumstances have changed since the entry of the
prior judgment. "The change may be in the needs or the
resources of the parties . . . or in their respective incomes."
Kernan v. Morse, 69 Mass. App. Ct. 378, 383 (2007), quoting from
Fugere v. Fugere, 24 Mass. App. Ct. 758, 760 (1987).9
9 We note that the criteria for determining a party's income is the same for purposes of both alimony and child support. See G. L. c. 208, § 53(b) (for purposes of calculating alimony "income shall be defined as set forth in the Massachusetts child support guidelines"). 12
Here, the husband sought a downward modification of his
alimony and child support payments on the basis that his income
from SEED was substantially lower than his income at the time of
the divorce. However, the divorce judge concluded that the
husband was not entitled to modification because his decision to
resign from NMH, and the resulting reduction in his income, was
"voluntary." The judge found that because the husband "was
earning less at the time of the [modification] trial . . . than
prior to the divorce by his own choosing," it was appropriate to
attribute income to the husband consistent with his prior NMH
salary. The husband claims that the judge's attribution of
income to him was error. We agree.
At the outset, we note that "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). Accordingly, the discussion that follows
applies to both alimony and child support.10
"In the proper circumstances, '[a] judge is not limited to
a party's actual earnings but may . . . consider potential
earning capacity' when attributing income." Id. at 152, quoting
from Heins v. Ledis, 422 Mass. 477, 485 (1996). However, before
doing so, the judge must make a determination that a party is
10 Both the Act and the guidelines permit a judge to attribute income to a party who "is unemployed or underemployed." See G. L. c. 208, § 53(f); Guidelines § I-E. 13
capable of earning more with reasonable effort. See Flaherty v.
Flaherty, 40 Mass. App. Ct. at 291. Indeed, "the Child Support
Guidelines and the case law specifically provide that an
attribution tied to earning capacity is to be based on whether a
party has exercised reasonable efforts in seeking employment."
Ulin v. Polansky, 83 Mass. App. Ct. 303, 307 (2013). See
Guidelines § I-E ("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").
When determining the earning capacity of a party who has
recently undergone a career change, we have said that
"[a]ttribution of income may be appropriate when a judge
determines a career change is voluntary." Flaherty v. Flaherty,
supra. In such voluntary career change cases, attribution based
on a party's prior earning capacity has been permitted when that
party has voluntarily left his or her job and has thereafter
failed to make reasonable efforts to secure comparable
employment. This may occur when a party has taken an early
retirement, or has chosen to pursue work in a totally unrelated
field at a substantially reduced salary, despite the
availability of higher-paying jobs commensurate with that
party's education, training, and experience. See, e.g., Schuler
v. Schuler, 382 Mass. at 372 (affirming attribution of income to 14
husband who, after being terminated from job, chose "to wait
indefinitely upon the limited prospect of becoming president of
a corporation" instead of taking readily available position as
engineer); Canning v. Juskalian, 33 Mass. App. Ct. 202, 209-211
(1992) (affirming attribution of income to wife who resigned
from job to stay at home with child from subsequent marriage);
Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 735-736 (1995)
(affirming attribution where husband voluntarily retired from
his job as letter carrier earning $735 per week to work as
missionary with pension income of $235 per week); C.D.L. v.
M.M.L., 72 Mass. App. Ct. at 152, 158 (affirming attribution of
income to husband who, after resigning as partner in large law
firm, "made minimal attempts to obtain employment" and "only
applied for jobs in areas for which he had little or no
experience").11
Here, it is apparent that the judge viewed this as a
voluntary career change case. As we have noted, the judge
"[found] it appropriate to attribute to [the husband] his NMH
salary in light of his voluntary resignation from his position
11 Compare Ulin v. Polansky, supra (reversing attribution of income where there was evidence that wife was "sincere in her job search" after resigning from previous job, yet judge failed to make specific finding whether wife had exercised reasonable efforts to obtain employment); Flaherty v. Flaherty, supra (reversing attribution of income to husband who was recently "laid off from his job" and "was readying himself to seek new employment"). 15
as Head of School at NMH."12 This was error. The facts of this
case are distinguishable from the voluntary career change line
of cases. The husband did not take an early retirement, nor did
he resign from NMH to pursue a less lucrative career in a
completely unrelated field. Moreover, while the judge found
that "[t]he [h]usband's position at NMH remained available to
him, but for his resignation," there was no evidence
12 The husband contends that the judge's finding regarding the voluntariness of his resignation from NMH was clearly erroneous. However, the judge's finding was based largely on his assessment of the husband's credibility at trial -- a finding that "[w]e will not reverse . . . unless we are convinced [it is] plainly wrong." Zaleski v. Zaleski, 469 Mass. 230, 237 (2014), quoting from Felton v. Felton, 383 Mass. 232, 239 (1981). The judge found that "[a]lthough the [h]usband testified that he resigned to 'smooth the waters' at NMH after revelation of an extramarital affair, there was absolutely no evidence presented at trial that the [h]usband was forced or requested to resign as Head of School at NMH." The judge declined to "credit the [h]usband's testimony that he had no expectation that his contract would be extended after June, 2012." While "[i]t is settled that mere disbelief of testimony does not constitute evidence to the contrary," Kunkel v. Alger, 10 Mass. App. Ct. 76, 86 (1980), we cannot say that the judge was plainly wrong in concluding that the husband failed to present credible evidence that he was forced to resign. This is especially true where, as here, the husband's own testimony regarding the circumstances of his resignation was somewhat vague and contradictory. The husband testified that he was unable to discuss the terms of his resignation due to a confidentiality agreement, and that he did not initially believe that disclosing the affair to Chardack would cost him his job. While we decline to disturb the judge's finding as to the voluntariness of the husband's resignation from NMH, we note that it is not dispositive of the attribution issue. 16
demonstrating that the husband's employment with NMH would
continue indefinitely.13
Regardless of the circumstances surrounding the husband's
resignation from NMH, the judge was still required to consider
whether, at the time of the modification trial, the husband
could earn more with reasonable effort. See P.F. v. Department
of Rev., 90 Mass. App. Ct. at 711 ("[I]n Massachusetts, the
relevant inquiry for attribution of income is not whether the
payor's unemployment was 'foreseeable'; it is whether the payor
is presently able to obtain employment through 'reasonable
efforts'"). The reasonable efforts inquiry is critical, and is
generally the determining factor in whether to affirm the
attribution of income to a party based on his prior earning
capacity. See, e.g., C.D.L. v. M.M.L., 72 Mass. App. Ct. at 157
(in affirming attribution of income to husband, court gave
"special weight to the judge's finding that the husband was
'earning less than he could with reasonable efforts'"). Indeed,
as we have previously observed, "neither this court nor the
Supreme Judicial Court has affirmed an attribution of income
13 While there was some evidence (namely, Chardack's December, 2010, letter of intent) indicating the potential for a contract extension through June, 2015, there is nothing in the record indicating that the husband's employment would be extended beyond that date. Indeed, the husband's predecessor served as head of school for six years, and the head of school prior to that served for eight years. By the time of his resignation in May, 2011, the husband had already served as head of school for seven years. 17
made without a finding concerning the party's reasonable efforts
to secure employment." Ulin v. Polansky, 83 Mass. App. Ct. at
307.14
In making such a finding, the judge must "consider all
relevant factors including without limitation the education,
training, . . . past employment history of the party, and the
availability of employment at the attributed income level."
Guidelines § I-E. See Flaherty v. Flaherty, 40 Mass. App. Ct.
at 291 ("judge should determine by specific and detailed
findings of fact whether an individual will be able to earn
additional income with reasonable effort before attributing
income"). Here, the judge found that the husband is "highly
employable," having "advanced steadily in his career in academia
throughout the parties' marriage." However, the judge did not
make a specific finding regarding the reasonableness of the
14 In Ulin v. Polansky, a case with facts similar to those of the present case, the wife voluntarily resigned from her job because she "believ[ed] that she could not reasonably meet" sales goals imposed by her new supervisor. 83 Mass. App. Ct. at 304. The trial judge found that while the wife's resignation was voluntary, "she had no other decision but to do so given the proposal with which she was faced." Id. at 305. The wife maintained that she was actively looking for work but had not been able to secure a new job. Id. at 304. However, the judge found that the wife was "presently able to obtain employment," and attributed an annual income to her of $120,000. Id. at 305. This court ultimately reversed and remanded, concluding that the "attribution rest[ed] on insufficient factual findings" because, notwithstanding the wife's voluntary resignation, the judge failed to make a specific finding as to "whether [the wife] had exercised reasonable efforts in her job search." Id. at 306- 307. 18
husband's efforts to secure employment. Instead, the judge
simply "credit[ed] the [h]usband's testimony about his job
search efforts after his resignation from NMH." The testimony
credited by the judge details the husband's extensive job search
spanning eleven months (from June, 2011, to May, 2012) during
which the husband (1) applied for dozens of positions in the
private education sector, the majority of which were head of
school or similar positions; (2) traveled frequently, often
several times per month (including to Boston, New York,
Connecticut, California, and China), to attend numerous
interviews, meetings, and job fairs; (3) worked with several
recruiters and job search agencies; (4) reached out continuously
to his contacts in the education field regarding potential job
openings; and (5) worked on developing skills in educational
technology to further enhance his marketability. These efforts
to secure a permanent position resulted in a single job offer,
the head of school position at SEED, which the husband accepted.
Rather than assessing the reasonableness of the husband's
job search leading up to his acceptance of the SEED position,
the judge instead found that "once the [h]usband obtained his
position with the SEED Foundation in May, 2012, he ceased making
any efforts to find employment that paid a salary commensurate
with that he had made at NMH." It is neither reasonable nor
fair to expect the husband, after he has engaged in an extensive 19
job search in his field of expertise and has secured employment
commensurate with his training and experience, to continue his
job search efforts indefinitely to avoid the risk of income
attribution. Compare Schuler v. Schuler, 382 Mass. at 371-372;
C.D.L. v. M.M.L., 72 Mass. App. Ct. at 150, 158. Accordingly,
not only did the judge fail to make a specific finding that the
husband could earn more with reasonable effort, it is apparent
that such a finding cannot be made on this record.15
In light of the foregoing, we conclude that "[t]he criteria
for attribution of income were not met in this case." P.F. v.
Department of Rev., 90 Mass. App. Ct. 707, 710 (2016). See Ulin
v. Polansky, 83 Mass. App. Ct. at 307 ("without a specific
finding" that party has failed to exercise reasonable efforts to
obtain employment, "attribution tied to an earning capacity
. . . . rests on insufficient factual findings"). As such, the
husband's support obligations must be based on his present
15 It is worth noting that while the judge failed to give appropriate attention to the required "reasonable efforts" inquiry, he appeared to consider an impermissible factor -- the husband's conduct -- when deciding to attribute income to him. The judge specifically found that "[t]he [h]usband's resignation from his position as Head of School was voluntary and was the result of his affair with a subordinate. The [h]usband's willful and deceptive behavior resulted in the resignation. . . . As a result of the [h]usband's resignation, the [w]ife lost her housing, access to unlimited meals at no charge, use of a vehicle, subsidized vacations and numerous other benefits." "[W]e caution against the view that . . . alimony . . . may be justified purely on the basis of the blameworthy conduct of one of the spouses." Putnam v. Putnam, 5 Mass. App. Ct. 10, 15 (1977). 20
income. Flaherty v. Flaherty, 40 Mass. App. Ct. at 291. We
therefore vacate the dismissal of the husband's complaints for
modification and remand for a redetermination of the husband's
support obligations consistent with his actual, rather than
attributed, income.
2. Contempt. The husband argues that the contempt judge
abused her discretion by failing to modify the husband's alimony
arrearages and ongoing alimony payments once she determined that
the husband lacked the ability to pay. "A Probate Court has
power to modify a support order in the context of either a
complaint for contempt or a complaint for modification. . . .
This power may be exercised not only as to future obligations,
but also as to arrearages." Kennedy v. Kennedy, 17 Mass. App.
Ct. 308, 312 (1983), and cases cited. But see G. L. c. 119A,
§ 13(a) (child support arrearages are only subject to
retroactive modification during period in which complaint for
modification is pending). Here, we need not reach the issue of
whether the contempt judge properly exercised her discretion in
declining to modify (both retroactively and prospectively) the
husband's alimony payments, because we have already concluded
that the divorce judge abused his discretion in declining to
grant the husband's request for a downward modification of his
support obligations. 21
Conclusion. The judgment after remand dated January 18,
2016, is vacated, and the matter is remanded for the limited
purpose of recalculating the husband's child support and alimony
obligations based on the husband's actual income at the time of
the modification trial.16 The modification of the husband's
alimony and child support obligations shall be effective as of
the date of the original judgments of dismissal entered on
October 24, 2013.
The judgment on complaint for contempt (after remand) dated
February 16, 2016, is vacated, and the matter is remanded for
recalculation of the husband's alimony arrearages, if any,
following the modification of his support obligations on
remand.17
So ordered.
16 On remand, the judge may consider, in addition to the husband's salary, any "perquisites or in-kind compensation to the extent that they represent a regular source of income" to the husband. Guidelines § I-A-20. 17 The wife's request for appellate attorney's fees and costs is denied.