Emery v. Sturtevant
AC 16-P-443
| Mass. App. Ct. | May 12, 2017Background
- Parties divorced after 20-year marriage; husband was long-time head of school at Northfield Mount Hermon (NMH) with base salary $350,000 and total compensation >$450,000; wife was primary caregiver.
- Husband resigned from NMH in May 2011 after disclosing an affair, received one-year severance continuing base pay through June 30, 2012, and then searched for new work.
- Husband accepted a lower-paying head-of-school job at SEED (salary $135,000) offered May 30, 2012 and sought modification of alimony and child support based on reduced income.
- Divorce judge attributed income to husband based on prior NMH earnings and denied modification; wife filed multiple contempt actions for arrears, and lower courts found varying arrearage amounts.
- Appeals court previously vacated judgments for inadequate findings about the reasonableness of the husband’s job search; on remand the divorce judge again attributed income without additional evidence.
- Appeals court now concludes attribution was improper because the judge failed to find the husband could earn more with reasonable effort; remands for recalculation of obligations based on actual income and for recalculation of any arrearages.
Issues
| Issue | Plaintiff's Argument (Emery) | Defendant's Argument (Sturtevant) | Held |
|---|---|---|---|
| Whether court properly attributed income to husband based on prior NMH salary for alimony/child support | Attribution appropriate because husband voluntarily resigned and is highly employable; should be held to prior earning capacity | Husband argued he conducted an extensive, good-faith job search, accepted a bona fide lower-paying position, and attribution requires a finding he could earn more with reasonable effort | Attribution reversed: court held judge failed to make required specific finding that husband could earn more with reasonable effort; support must be based on present actual income (remand) |
| Whether contempt judge should have reduced/eliminated arrearages after finding husband unable to pay | Wife sought enforcement and arrearages based on original orders | Husband argued inability to pay warrants modification of ongoing payments and arrears | Court did not decide abuse of discretion on contempt modification because remand on modification of support controls; contempt judgment vacated and remanded for recalculation after support is recalculated |
Key Cases Cited
- Flaherty v. Flaherty, 40 Mass. App. Ct. 289 (1996) (attribution of income requires specific findings that party can earn more with reasonable effort)
- Ulin v. Polansky, 83 Mass. App. Ct. 303 (2013) (reversed attribution where judge failed to find whether party had exercised reasonable efforts in job search)
- C.D.L. v. M.M.L., 72 Mass. App. Ct. 146 (2008) (attribution may be appropriate but depends on evidence of minimal job-search efforts after resignation)
- Heins v. Ledis, 422 Mass. 477 (1996) (courts may consider potential earning capacity, not just actual earnings)
- P.F. v. Department of Rev., 90 Mass. App. Ct. 707 (2016) (criteria for attribution not met where record lacks required findings regarding reasonable efforts)