The probate and family courts are very busy places. Each judge has about 1,000 cases. It only takes sitting in a courtroom and observing the various cases–with their arguments and emails and text messages and emotional outcry–to see that in what might be complex situations with various complicated legal issues, judges have little time to consider the facts and render a fair and equitable decision. Like all of us, judges are only human and make mistakes too. Fortunately, when a party appeals a mistake, we all learn something about this area of divorce law.
Today, we are discussing the recent decision of Frost-Stuart v. Stuart. The court in that case addressed two main issues. The first is an alimony issue that has been resolved several times over — the judge only missed it because of the timing of the controlling decisions. So, first, we’ll discuss that alimony issue. Then we’ll move on to the child support issue that is the subject of this article.
Here, the Appeals Court revisited the issue of alimony modification. It discussed which standard applies in a situation where a judge issued the original order before the enactment of the Alimony Reform Act of 2011. The second issue relates to attribution of income to a parent and a child support calculation. The court then goes on to deal with multiple contempt issues. The Appeals Court remands all of the latter to the trial court, based on the additional work the trial judge must complete in order to resolve issues one and two above.
What standard applies in a Massachusetts alimony modification when the original order issued in 2010?
Massachusetts alimony law changed dramatically upon the enactment of the Alimony Reform Act of 2011. Among other things, the act established cohabitation as a basis to terminate palimony. Essentially, the act provides that when the recipient spouse resides with another individual for three months or longer, such cohabitation may be grounds to modify, reduce, or terminate alimony.
After the act became effective, there was a flurry of filings of actions to terminate alimony for cases that had been on the books for years and years. The basis of those cases was simple: they were brought by the payers of alimony who wanted their obligations to stop based on the new law.
Three pivotal cases were then decided, clarifying the law. We have discussed each of those cases, including the one cited in this case, the Chin case, so we won’t go into great detail again here. The resulting law is this: if your alimony case was originally decided before the new law came into effect, the old standard of proving there has been a substantial, material change in circumstances justifying modification down or termination of the alimony order is the standard which applies. Unfortunately, as the appeals court noted in this opinion, because of the timing of this decision on the trial court level, the judge did not have the benefit of the Chin opinion when issuing his ruling. Accordingly, the judge made the same mistake as in the other cases, terminating alimony based on the new statute. Of course, as in the other cases, this court reversed and remanded to the trial court to fix its error.
Can the Court consider the income of the recipient’s cohabitant (such as boyfriend, girlfriend or new spouse) in determining the recipient’s income for the purpose of calculating child support?
The second issue presented in escape has to do with the attribution of income in a child support determination. To give you a sense of the background of this particular case, the father is very well off, employed as a portfolio manager at an investment management company, making over $600,000 a year. The mother is unemployed and has been for a long time. In determining child support in that case, the father argued that the mother should be attributed income. Attribution of income means that the court essentially pretends that a party has a greater income than he or she truly has. Under Massachusetts law, if a parent is earning less than he or she could through reasonable effort, the court can consider what the person could make when it calculates child support.
In this case, the judge attributed to her annual earnings of $16,682, based on the minimum wage, considering that she is unemployed. Interestingly, the judge also attributed an additional annual contribution of $27,000 which represented the entirety of her boyfriend’s annual Social Security Disability Income (SSDI) benefits. Basically, the mother had moved in with her boyfriend whose only income was SSDI. The court counted all of the boyfriend’s income as though it were income of the mother. The appeals court reversed.
While the appeals Court found the trial judge’s analysis as it relates to the minimum wage attribution to be acceptable, the Court found that without other findings, it would be improper to attribute the income of the boyfriend to the Mother. This is really interesting, because the Court really left open the door as to whether the boyfriend’s SSDI could be attributed to the mother as income in certain circumstances.
The Court went on to list several facts which would help in the analysis in such a situation, including the lack of an obligation of the mother’s boyfriend to support the children, the manner in which the mother’s and children’s lifestyles are altered by the SSDI, discretion of the mother’s boyfriend in paying those funds, and the manner in which the mother would support her household if she did not receive those funds. That portion of the judgment was reversed, but it gave us the framework to use in analyzing such a situation in future cases.
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Yet another case on the Alimony Reform Act, and an interesting consideration of what income should be considered attributable in a child-support calculation, including specifically the benefit of income received from a new significant other. These issues can be complicated, and I recommend that if you’re dealing with them, you consult with an experienced divorce lawyer. To schedule a free consultation with our office, call 978-225-9030 during regular business hours for complete a contact form here and we will get back to you at our earliest opportunity.