40 Mass. App. Ct. 289 | Mass. App. Ct. | 1996
In August, 1994, the parties were divorced by a judgment nisi that required the husband to pay child support of $400 per week. The husband appeals, claiming the support order was based on an attribution of earnings unsupported by the judge’s findings. He also challenges a finding of civil contempt based on his payment of less than $400 per week in child support. As the judge’s findings were inadequate to support the attribution of income, we vacate the judgment as to child support and remand for further findings. We therefore also vacate the judgment of contempt, see Dominick v. Dominick, 18 Mass. App. Ct. 85, 93-95 (1984), and reinstate the husband’s prior support obligation under the temporary order ($115).
Before final judgment entered, the husband was paying child support of $115 per week under a temporary order that computed his obligation under the Child Support Guidelines (1989) based on his actual unemployment income of $375 per week. In her proposed judgment, the wife requested child support in the amount of $400 per week. This amount was based on a computation attributing to the husband full-time employment income of $1,211.54 a week.
In the judgment of divorce nisi, the judge ordered the husband to pay $400 per week in child support. In her findings of fact, the judge concluded that “[t]he husband has the ability, based on his skills and experience, to acquire future capital and income.” She made no specific findings in support of this general conclusion. In an amendment to the judgment of divorce nisi, the judge ordered that “[tjhe obligation [to pay $400] begins on the date of this judgment because income greater than unemployment compensation is attributed to the husband.”
Despite the judge’s order, the husband continued to pay $115 per week in child support. On November 7, 1994, the husband was found in contempt by another judge for failure
The earning capacity rather than the actual income of a parent may be considered in determining child support orders. Canning v. Juskalian, 33 Mass. App. Ct. 202, 206 (1992). Guideline II-H of the Child Support Guidelines provides, however, that the court first must make “a determination that either or both parties is earning substantially less than he or she could through reasonable effort . . . .”
In keeping with the guidelines, a 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.
The order of child support in the judgment of divorce nisi is vacated; in all other respects, the judgment is affirmed. The judgment of contempt is vacated. The judge shall file in this
So ordered.
In addition to challenging the award of child support, the husband challenges the award of physical custody to the wife and the division of marital
The husband further challenges the visitation order to which he agreed in the stipulation. To change visitation he must file a complaint for modification and demonstrate that a material and substantial change has occurred and that a change in visitation would be in the best interest of the children. G. L. c. 208, § 28.
The husband had been holding $7,000 for payment of the wife’s attorney’s fees in accordance with the divorce judgment. Although we are vacating the contempt judgment, the $7,000 will remain with the wife but should be applied by the wife to the payment of her attorney’s fees.
The guidelines state that they “are intended to be applied where a finding has been made that the party is capable of working and is unemployed, working part-time or is working a job, trade, or profession other than that for which he/she has been trained.” Guideline II-H.