52 Mass. App. Ct. 156 | Mass. App. Ct. | 2001
When the parties were divorced in 1985, their
The parties continued to reside in Massachusetts until, in 1986, the former wife obtained employment in New York and sought the Probate Court’s permission to move the children there. As a result, the parties executed a modification to their separation agreement. One of its new terms acknowledged the former wife’s motive to take the children to New York to further .her career goals. The agreement also provided that any increased living expenses for her or the children occasioned by the move would become her sole responsibility. The modification agreement also amended that part of the parties’ 1985 agreement pertaining to the children’s education, and stated that costs not otherwise paid by the former husband, family, or another source “shall be borne by the parents with reasonable contribution from each party given their relative financial circumstances.” A modified judgment, incorporating but not merging the modified separation agreement, entered in 1987.
Unfortunately, the former wife’s prospects for a more independent life in New York soured. Although she sold her house at a $300,000 profit, she lost $50,000 in one ill-advised investment and reduced her work hours to spend more time with the children, both of whom had developed emotional problems. In the meantime, the former husband’s assets increased substantially. As a result, the former wife filed a
In all other respects, the judge affirmed the 1987 modified judgment. It is apparent from his underlying findings of fact and conclusions of law that the judge considered inappropriate the former wife’s principal demand for child support payments beyond the $2,817 monthly order. He wrote that “any additional monies granted to the plaintiff, in excess of the [$2,817 monthly] child support order[,] would essentially be utilized as alimony for the plaintiff.”
The former wife has appealed, challenging the amount of child support as inadequate (including the judge’s denial of her demand that her former husband pay the children’s educational expenses from his own funds) and the judge’s findings as contrary to the evidence and the law, and asserting that he failed to fashion an award consistent with the needs of the children and the resources of the parties. For his part, the former husband cross-appeals, but disputes only the judge’s award of counsel fees to his former wife.
It is undisputed that the former husband’s income derives primarily from inherited wealth placed in trust by his parents and other relatives. These assets have substantially increased in value over the ten years from the entry of the 1987 modified judgment to the November, 1997, trial on the complaint for
The statute governing support modification requires an analysis of both the changed circumstances of the parties and the best interests of the children. See G. L. c. 208, § 28. When setting an amount of support, judges are granted discretion to award sums beyond the guideline amount where, as here, one or both of the parents exceed certain income levels. See Massachusetts Child Support Guidelines II-C (effective January 1, 1994) (requiring noncustodial parent to pay a “minimum presumptive level of support” based on a $75,000 annual
Some States considering the question of gross disparity of income have applied an “income-sharing” method that is designed to maintain the pre-divorce standard of living of the children after an intact family splits into two households. See White v. Marciano, 190 Cal. App. 3d 1026, 1031-1032 (1987); Galbis v. Nadal, 626 A.2d 26, 31 (D.C. 1993); Zak v. Zak, 629 So. 2d 187, 188-189 (Fla. Dist. Ct. App. 1993); Boyt v. Romanow, 664 So. 2d 995, 996-999 (Fla. Dist. Ct. App. 1995); Pratt v. McCullough, 100 Ohio App. 3d 479, 481-482 (1995); Branch v. Jackson, 427 Pa. Super. 417, 419-420 (1993).
As to the former wife’s doubtfully relevant claim that the children — ages twenty and seventeen at the time of the trial — were physically and emotionally abused by their father, the rec
The judge was correct to reject the former wife’s request that the children’s educational expenses be paid from the defendant’s personal funds, and not the Uniform Gift to Minors Act (UGMA) accounts that the former husband funded before and after the divorce. The former wife’s argument, posited for the first time on appeal, that the former husband should also replenish funds already taken for this purpose from these trusts in the children’s names, makes little sense. He established these vehicles (UGMA trusts) to make funds available to the children for tuition and related living costs for higher education. The former wife cites no case law to support her demand that he pay these expenses entirely out of his own personal funds. To be sure, college expenses may be a support obligation as regards a child under the age of twenty-three and domiciled with the parent upon whom the child is principally dependent. See G. L. c. 208, § 28. As we have observed, however, the parties’ agreement adequately provides for the children’s educational expenses to be met, and the former wife has not shown that the children’s interests require something more.
Last, we turn to the former husband’s cross appeal of the judge’s award to the former wife of her attorney’s fees. The former husband argues, and we agree, that the judge’s $115,652.07 fee award was surprising given the judge’s observation that part of the former wife’s case was “unwarranted and without legal merit, and consequently should not be rewarded through the imposition of fees.”
We defer to the judge’s decision to award the former wife her attorney’s fees but find fault with his method of calculation. The judge set the $115,652.07 award (reduced from the $162,571.57 the former wife sought) admitting that the calculation was done “without much thought and for simplicity’s sake, as an amount equal to the fees of the defendant’s attorney.” While matching the opposing counsel’s bill has a certain appeal, assessment of counsel fees requires an application of relevant factors. See, e.g., Fontaine v. Ebtec Corp., 415 Mass. 309, 325 (1993). We remand for the limited purpose of reassessing the former wife’s reasonable attorney’s fees.
As both parties have lost their appeals, and in the hopes of deterring them from further litigation, we deny their requests for counsel fees associated with this appeal.
For the reasons stated above, we affirm the portion of the judgment pertaining to child support and vacate so much of the judgment as sets at $115,652.07 the amount of theoaward of attorney’s fees. The case is remanded for further proceedings consistent with this opinion.
So ordered.
In addition to seeking increased child support, the former wife had sought to increase the husband’s alimony obligations in a second amended complaint for modification. Before trial, however, the former wife dismissed this demand. The judge found that the alimony provisions of the agreement survived, and in a discovery ruling ordered that “there shall be no redistribution of the marital assets.”
When the former husband turned eighteen, a trust was established by his parents to hold an inheritance for him. While “irrevocable,” the trust reserves to him the right to amend, or to revoke, the trust in whole or in part, subject to approval by the two trustees, Citibank of New York and James Cherry, an attorney. As set forth in his financial statement of November 26, 1997, since 1984 the former husband has received annual distributions from the trust of $89,000, of which $20,000 annually has been paid directly by the trustees to satisfy his alimony and child support obligations. In addition, he received $32,907 annually as the sole income beneficiary of another family trust created by his late uncle. His children are the sole remainder beneficiaries of this trust. The rest of his $169,587 in gross annual income was from various sources, including distributions from his mother’s estate. The primary trust set up by his parents increased in value by 350 per cent between 1984 and November, 1997, from $1,324,000 to $4,739,400. As of the trial, his assets consisted of $6,200,000 in cash and securities, about $508,000 in assessed value of unencumbered real estate, and $155,000 in assorted personal property, for total assets of not less than $6,850,000.
The trial judge, in his findings, noted that with the increased support payments, the financial resources of the wife and children totaled $104,388 on an annual basis.
“These guidelines are not meant to apply where the combined gross income of the parties exceeds $100,000 or where the gross income of the non-custodial parent exceeds $75,000. In cases where income exceeds these limits, the court should consider the award of support at the $75,000/$100,000 level as a minimum presumptive level of support to be awarded. Additional amounts of child support may be awarded at the judge’s discretion.” Massachusetts Child Support Guidelines II-C (effective January 1, 1994).
We acknowledge the helpful amicus brief of the Women’s Bar Association, collecting these decisions.
Dubbed in literature the “Three Pony Rule” (i.e., no child needs three ponies), the doctrine has earned cachet. See Morgan, supra at 198 n.69. Cf. Coleman v. Coleman, 648 So. 2d 605, 606-607 (Ala. Civ. App. 1994) (upholding an award exceeding the statutory presumptive level where it correlated with the reasonable and necessary needs of the children); Voishan v. Palma, 327 Md. 318, 322-324 (1992) (upholding an award exceeding the statutory presumptive level where the court determined the reasonable needs of the child and then calculated each parent’s proportionate share). Compare In re Marriage of Upson, 991 P.2d 341, 344-345 (Colo. Ct. App. 1999) (remanding for findings on the children’s needs because the court could not deviate upwards from the statutory presumptive level solely on the basis of the parties’ gross economic disparity).
The only precedent cited by the former wife to support her income-sharing argument is Redding v. Redding, 398 Mass. 102, 110 (1986) (“children are entitled to adequate support and maintenance reasonably within the power of both parents to furnish it”). Here, the judge made extensive findings of fact and law supporting his determination of what constituted “adequate” support and maintenance for the children. While Redding stated in dictum that “[tjhere is some ground for the view that the noncustodial parent’s child support contribution might best be related to a percentage of his or her income so that the child may benefit from that parent’s financial success,” id. at 110 n.6, we are not convinced that any precedent in Massachusetts has actually applied this standard.
As to the former wife’s argument that the support award fails to cover the children’s (anticipated) post-emancipation therapy expenses, it appears that whatever remedy she might have in the future would be not by support modification under G. L. c. 208, § 28, but by way of the court’s general equity powers under G. L. c. 215, §§ 3, 6, authorizing entry of orders for persons under guardianship. See Feinberg v. Diamant, 378 Mass. 131, 134 (1979) (an action in equity may require a financially able divorced parent to contribute to a mentally infirm adult child’s support).
While noting that the child support guidelines were inapplicable because the husband’s annual income exceeded $75,000, the court based its determination on the minimum presumption for the $75,000 level, then in its discretion added approximately fifty per cent. The judge found that this amount was adequate to meet the children’s increased reasonable expenses, and that anything more would represent an increase in the former wife’s alimony.
The judge laid out his calculation as follows. He first noted that the former husband’s annual income exceeded $75,000 and was therefore above the maximum range of the child support guidelines. He therefore set as a starting point, as required by the guidelines, a presumptive minimum amount of support for the $75,000 level. This amount was determined by multiplying the former husband’s weekly income ($1,442) by 30 per cent (yielding $433 per week) and adding a discretionary 15 percent of the result (i.e., $64.95 per week) to account for the ages of the children (17 and 20), for a total of $497.95 per week. In arriving at the presumptive minimum support figure, the judge did not, as he might have done, reduce the amount by accounting for income attributable to the former wife ($699 per week, excluding $231 per week in alimony), see Child Support Guidelines II-H, or costs of medical insurance and uninsured medical expenses (including psychotherapy) paid by the former husband (an approximate $653 per week), see Child Support Guidelines H-G.
To the presumptive minimum, the judge in his discretion added another $152.05 (about 30 per cent of the $497.95 minimum) to arrive at the final figure of $650 weekly. It was at this point that the judge appears to have factored in the aforementioned income of the former wife and medical expenses paid by the former husband. The judge also made a finding, supported by the evidence, that the reasonable needs of the children did not exceed $325 per week.
Although the former wife’s actual earned annual income was $6,500 based on working one day per week, the judge attributed an additional $26,000
The judge did not find credible the former wife’s argument (echoed by the Women’s Bar Association in its amicus brief) that she should be credited financially for her necessary decision to stay home with her psychologically fragile children. Further, during the period in question, the former wife took a trip to Ireland by herself for ten days, while her daughter traveled on her own to Australia for three weeks.
The judge spared no ink in faulting the former wife and her attorneys for their inordinate expenditures and overly complex trial strategy. The judge found that the former wife was poorly advised by her attorneys, whose actions “were clearly adverse to the interests of [their] client.” The judge also called the former wife’s discovery strategy “a fishing expedition,” and noted that her counsel fees exceeded the total amount of increased child support by over $60,000. The judge also found that the former wife’s plea for child support, brought just before the children reached the age of emancipation, was a “deceptive attempt” to revise the binding alimony agreement.