Zeghibe v. Zeghibe
82 Mass. App. Ct. 614
| Mass. App. Ct. | 2012Background
- Divorce nisi finalized December 2007; older child 18, younger child 12.
- Initial judgment awarded shared physical custody; husband paid $600/week child support and $400/week alimony; substantial assets awarded to both.
- August 2008 modification: temporary removal of alimony and reduction of child support to $500/week due to husband’s disability and income drop.
- March 9, 2010 trial: consolidated judgment—husband gains physical custody of younger child; wife to pay $200/week child support; husband to pay $200/week alimony; retroactive to August 29, 2009.
- April 20, 2010 amended judgment: wife pays $170/week child support; husband pays $405/week alimony; retroactive to August 29, 2009; creates net transfer of alimony from wife to husband of about $235/week; issues arise on alimony and child support calculations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Alimony amount based on need or formula | Zeghibe argues wife’s need is not adequately shown; reliance on a formula unclear. | Zeghibe contends the formula under task force guidelines is inappropriate where children are involved; need and ability to pay not properly weighed. | Alimony order vacated; remanded for proper consideration of need and statutory factors. |
| Income attribution for child support | Zeghibe challenges the $31,000/year attribution as improper given medical inability to work. | Zeghibe says attribution is permissible under guidelines for underemployment. | Income attribution set aside; remand for recalculation. |
| Double counting IRA distributions as income | Zeghibe argues distributions from the IRA awarded as property cannot be treated as income for support. | Wife asserts potential income may be considered in appropriate circumstances. | IRA income attribution set aside; remand for proper treatment. |
| Remand and governing law applicability | Remand to PF Court to apply updated law and guidelines, including post-2012 changes. | No substantive counterpoint beyond continuance of temporary orders. | Remand for new proceedings; pending orders remain temporary unless good reason to modify. |
Key Cases Cited
- Pierce v. Pierce, 455 Mass. 286 (Mass. 2009) (material change, alimony factors must be weighed in light of need and ability to pay)
- Heins v. Ledis, 422 Mass. 477 (Mass. 1996) (alimony must reflect recipient’s need and supporting spouse’s ability to pay)
- Gottsegen v. Gottsegen, 397 Mass. 617 (Mass. 1986) (alimony grounded in traditional concepts; need not be formulaic)
- Bowring v. Reid, 399 Mass. 265 (Mass. 1987) (relevance of need and economic factors in alimony awards)
- Croak v. Bergeron, 67 Mass. App. Ct. 750 (Mass. App. Ct. 2006) (double counting; asset distributions and income treated properly in modifications)
- M.C. v. T.K., 463 Mass. 226 (Mass. 2012) (guidelines and income attribution pertinent to modifications)
- Crowe v. Fong, 45 Mass. App. Ct. 673 (Mass. App. Ct. 1998) (early guideline interpretation relevant to modification context)
- Pagar v. Pagar, 9 Mass. App. Ct. 1 (Mass. App. Ct. 1980) (asset distributions and income treatment in divorce contexts)