Ulin v. Polansky
83 Mass. App. Ct. 303
| Mass. App. Ct. | 2013Background
- Following the parties’ divorce, the wife sought an upward modification of child support due to unemployment.
- Original judgment ordered the husband to pay about $65 weekly, with shared nanny costs and roughly equal parenting time.
- In 2008 the wife became unemployed after severance and actively sought new employment in health care marketing but could not secure permanent work.
- A 2010 modification trial attributed the wife income of $120,000 based on earning capacity, and ordered $132 weekly in child support to the wife, plus $8,160 repayment by the wife for excess past support.
- The wife moved for relief under Rule 60(b)(2) and (6) after SSA disability; the motion was denied, and she appealed, with the court remanding for further fact-finding on income attribution while leaving interim child support in place.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was income attributed to the wife properly supported? | Graham: wife exercised reasonable efforts to obtain work. | Gibbons: attribution based on earning capacity is appropriate; based on evidence. | Remanded for further factual findings on reasonable efforts; attribution incomplete. |
| Did the judge properly weigh the expert testimony on employment prospects? | Graham: wife’s expert should have been given weight. | Gibbons: trial court has discretion to accept or reject expert testimony. | No error in discretion; trial court validly weighed admissible testimony. |
| Was the denial of Rule 60(b) relief appropriate in light of new disability evidence? | Graham: disability after judgment warranted relief under 60(b)(6). | Gibbons: need new evidence and possibly a new modification action. | Judge did not abuse discretion; relief denied pending new proceedings if appropriate. |
Key Cases Cited
- Heins v. Ledis, 422 Mass. 477 (Mass. 1996) (attribution of income when earning less than capable via reasonable efforts)
- C.D.L. v. M.M.L., 72 Mass. App. Ct. 146 (Mass. App. Ct. 2008) (attribution of income tied to reasonable efforts; earning capacity)
- Schuler v. Schuler, 382 Mass. 366 (Mass. 1981) (consideration of assets and standard of living in attribution)
- Flaherty v. Flaherty, 40 Mass. App. Ct. 289 (Mass. App. Ct. 1996) (assets and living standards in attribution of income)
- Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764 (Mass. App. Ct. 2006) ( Rule 60(b) relief standards; discretion)