Emery v. Sturtevant

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16-P-443 Appeals Court

ELIZABETH EMERY vs. THOMAS K. STURTEVANT.

No. 16-P-443.

Franklin. December 2, 2016. - May 12, 2017.

Present: Vuono, Wolohojian, & Shin, JJ.

Divorce and Separation, Modification of judgment, Child support,
Alimony, Findings. Parent and Child, Child support.
Evidence, Earning capacity. Contempt.

Complaint for divorce filed in the Franklin Division of the
Probate and Family Court Department on November 12, 2010.

Following review by this court, 88 Mass. App. Ct. 1118
(2015), complaints for modification, filed on July 24, 2012,
were considered by Stephen M. Rainaud, J., and a complaint for
contempt, filed on January 24, 2014, was considered by Beth A.
Crawford, J.

David H. Lee (Jessica M. Dubin also present) for the
husband.
Edward F. Dombroski, Jr. (Laura S. Davis also present) for
the wife.

VUONO, J. This case, which comes before us a second time,

arises from the complaints filed by the former husband (husband)

for modification of alimony and child support payments and from
 2

a series of complaints for contempt filed by the former wife

(wife). The question we must answer is whether it is

appropriate to attribute income to the husband, for purposes of

determining his alimony and child support obligations, where he

resigned from a high-paying position as head of school at a

private institution and accepted a substantially lower-paying

position in the same field following an extensive job search.

We conclude that, under such circumstances, the criteria for

attribution of income have not been met. We therefore remand

this case for a determination of the husband's support

obligations based on his "present income." Flaherty v.

Flaherty, 40 Mass. App. Ct. 289, 291 (1996).

Background. A full recitation of the facts is necessary

for our discussion.1 The parties were divorced on June 18, 2012,

following twenty years of marriage. During the marriage, the

wife was the primary caregiver for the parties' three children,

while the husband worked in the private education sector, making

"considerable professional advancements over the years." On

July 1, 2003, the husband began working as associate head of

school at Northfield Mount Hermon School (NMH), located in Gill,

1
We summarize the uncontested findings of fact entered in
support of the judgments challenged on appeal, and "[w]here
necessary to provide context or meaning, we have supplemented
our summary" with competent evidence in the record appendix and
excerpts from this court's decision in the related case of Emery
v. Sturtevant, 88 Mass. App. Ct. 1118 (2015). M.C. v. T.K., 463
Mass. 226, 229 n.2 (2012).
 3

earning a starting annual salary of $128,500. He was promoted

to head of school in less than one year, and by all accounts, he

was extremely successful and effective in the performance of his

job duties. By 2010, the husband's base salary had increased to

$350,000. In addition to his base salary, the husband received

numerous benefits from NMH, including, but not limited to,

annual bonuses, deferred compensation, "free housing in an

eight-bedroom, five-bathroom, three-story mansion, with all

maintenance, cleaning and upkeep provided by the school," free

meals through the school's dining service, use of a vehicle, and

generous private school tuition waivers for the parties'

children. In 2010, the value of the husband's total

compensation package from NMH exceeded $450,000.

The husband's position as head of school was governed by a

series of three-year employment contracts; each contract was

subject to extension at the discretion of NMH's board of

trustees. The husband's initial contract guaranteed his

employment through June 30, 2007. His contract was thereafter

extended twice, ultimately guaranteeing his employment through

June 30, 2012.

In 2010, the husband was involved in discussions with Mark

Chardack, the chairman of NMH's board of trustees, to extend his

employment contract once again. To that end, in December, 2010,

Chardack sent a letter to the husband memorializing their
 4

"mutual intention . . . to enter into a formal employment

agreement before the end of the current School year" extending

the husband's "employment as Head of School through June 30,

2015." As it turned out, however, the husband was never

presented with a new contract.

In April, 2011, the husband informed Chardack that he had

engaged in an extramarital affair with a subordinate, which had

ended in November, 2010. In the following weeks, the husband

and Chardack spoke several times. The content of those

discussions was not disclosed at trial. On May 3, 2011, the

husband sent a letter to Chardack announcing that he was

resigning from NMH due to "personal reasons." Chardack

responded with a letter, dated the same day, indicating that he

accepted the husband's resignation "with deep sadness." The

husband stopped working at NMH immediately, although the school

year had not yet ended and his employment did not officially

terminate until June 30, 2011.2 In connection with his departure

from NMH, the husband received a severance package which

continued his base salary of $350,000 for one year (through June

30, 2012), along with some additional benefits. The husband

began looking for a new full-time position in June, 2011,

supplementing his severance package with proceeds from temporary

consulting work.

2
The school year ended in late May.
 5

The divorce proceedings. By the time of the husband's

departure from NMH, the parties had already separated and the

wife had initiated divorce proceedings in the Probate and Family

Court. A two-day trial was held before a judge (divorce judge)

in May, 2012, at which the wife was represented by counsel and

the husband represented himself. The divorce judge issued a

judgment of divorce nisi dated June 18, 2012, as amended on July

17, 2012, ordering the husband to pay weekly child support of

$780 and weekly general term alimony of $2,481 to the wife. The

judge calculated the support payments using the husband's

reported gross weekly income of $10,436.58.3

The husband's complaints for modification. On May 30,

2012, after the conclusion of the divorce trial but before the

entry of judgment, the husband was offered a position as head of

school at the SEED School of Cincinnati, Ohio (SEED), at a

starting annual salary of $135,000. On July 24, 2012, the

husband filed two separate complaints for modification seeking a

reduction in his child support and alimony obligations on the

basis that his new income was substantially lower than his

income at the time of the divorce. Following a trial, which was

held before the divorce judge, the complaints were dismissed.

3
The judge relied on the gross weekly income figure
reported on the husband's financial statement filed at the start
of the divorce trial. That figure included $3,705.81 derived
from the husband's temporary consulting work, and $6,730.77 from
the husband's severance pay from NMH.
 6

In his memorandum and order dated October 24, 2013, the divorce

judge concluded, without making subsidiary findings, that no

material change in circumstances had occurred because the

husband's "actual earnings [from SEED] are less than his

potential and demonstrated earning capacity," and the reduction

in the husband's income was caused by "his voluntary decision to

resign from NMH." The husband appealed from the dismissal of

his complaints for modification.

The wife's complaints for contempt. In addition to the

modification proceedings initiated by the husband, the parties

were involved in numerous contempt proceedings brought by the

wife. Between September, 2012, and January, 2014, the wife

filed three separate complaints for contempt alleging that the

husband had fallen behind in his child support and alimony

payments.4 The first two complaints were adjudicated by the

divorce judge, who found the husband to be in contempt and

4
On September 11, 2012, the wife filed a complaint for
contempt alleging that the husband was behind on his child
support and alimony payments. On November 14, 2012, the divorce
judge issued an amended judgment of civil contempt, finding the
husband in contempt and establishing his combined child support
and alimony arrearages at $10,248 as of September 27, 2012. The
wife filed a second complaint for contempt in November, 2012.
On February 14, 2013, the divorce judge issued a judgment of
civil contempt and established the husband's total arrearages at
$51,085 as of January 18, 2013. On March 27, 2013, the divorce
judge issued a further judgment of civil contempt, establishing
the husband's total arrearage at $54,346. Finally, on October
24, 2013, the divorce judge issued a further judgment of civil
contempt establishing the husband's total arrearage at
$90,710.91 as of October 11, 2013.
 7

established the husband's total arrearage at $90,710.91 as of

October 11, 2013. The wife's third complaint for contempt,

filed on January 24, 2014, was adjudicated by a different judge

of the Probate and Family Court (contempt judge). On April 18,

2014, the contempt judge issued a judgment establishing the

husband's alimony arrearage at $113,924.13 as of March 20, 2014

(the husband was current with his child support payments at that

point), while declining to find the husband in contempt due to

his inability to pay. Specifically, the contempt judge found

that the husband's expenses exceeded his net income by $102 per

week and that he did not have any liquid assets available to

satisfy his alimony arrearage. The husband also appealed from

the April 18, 2014, judgment.

The first appeal and remand. The husband's appeals were

consolidated and came before a different panel of this court.

In an unpublished memorandum and order issued pursuant to our

rule 1:28, the panel remanded the case, holding that the divorce

judge's failure to make adequate findings to support his

conclusion that the husband's reduction in salary was voluntary

and the absence of findings with regard to the reasonableness of

the husband's job search prevented an assessment of the validity

of the judge's ruling regarding the attribution of income.5

5
The panel further noted that it was unable to "discern
whether the judge credited any of the ample evidence presented
 8

Given the lack of subsidiary findings to support the divorce

judge's attribution of income, the panel was also unable to

determine whether "it was within the [contempt] judge's

discretion to allow arrears to continue accruing after the

complaints for modification were filed." Accordingly, the panel

vacated all three judgments and, as we have noted, remanded the

case for further proceedings consistent with its decision.

Shortly thereafter, on January 18, 2016, without taking

additional evidence,6 the divorce judge issued a "Judgment After

Remand" setting forth findings of fact in support of his

decision to dismiss the husband's complaints for modification.

One month later, on February 16, 2016, also without further

hearing, the contempt judge issued a "Judgment on Complaint for

Contempt (After Remand)," again declining to find the husband in

contempt in light of his inability to pay, while omitting a

specific arrearage amount in the judgment. The present appeal

followed.

Discussion. The husband challenges (1) the dismissal of

his complaints for modification on the ground that the

attribution of income based on his prior earning capacity was

by the husband at trial of the extent of his job search
following his resignation from NMH," or whether "the amount of
the attribution was appropriate."
6
The panel acknowledged that "[w]hether there should be
additional evidence taken in this case is a matter within the
judge's discretion."
 9

improper, and (2) the contempt judge's failure to eliminate the

husband's alimony arrearages and ongoing alimony payments in

light of her finding regarding the husband's inability to pay.

We address each claim in turn.

1. Modification. We review a judge's denial of a party's

request for modification of alimony and child support for an

abuse of discretion. See Pierce v. Pierce, 455 Mass. 286, 293

(2009); Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012). A

party seeking to modify an existing alimony award "must

demonstrate a material change of circumstances since the entry

of the earlier judgment." Vedensky v. Vedensky, 86 Mass. App.

Ct. 768, 772 (2014), quoting from Schuler v. Schuler, 382 Mass.

366, 368 (1981). See G. L. c. 208, § 49(e).7 "Because alimony

is a creature of statute," Vedensky v. Vedensky, supra at 776

n.11, actions to establish or modify alimony are governed by the

Alimony Reform Act (Act), G. L. c. 208, §§ 48-55. The Act

requires a judge to consider several factors when setting or

modifying an alimony award, including, but not limited to, the

"income, employment and employability of both parties," and the

7
"[G]eneral term alimony may be modified in duration or
amount upon a material change of circumstances warranting
modification." G. L. c. 208, § 49(e), inserted by St. 2011,
c. 124, § 3. "General term alimony" is defined as "the periodic
payment of support to a recipient spouse who is economically
dependent." G. L. c. 208, § 48, inserted by St. 2011, c. 124,
§ 3.
 10

"ability of each party to maintain the marital lifestyle."

G. L. c. 208, § 53(a), inserted by St. 2011, c. 124, § 3.8

Moreover, the Act generally limits the amount of an alimony

award to "the recipient's need or 30 to 35 per cent of the

difference between the parties' gross incomes." G. L. c. 208,

§ 53(b).

In contrast to alimony, "[t]he method for calculating and

modifying child support" is governed both by statute, see G. L.

c. 208, § 28, and by the Massachusetts Child Support Guidelines

(2013) (guidelines). Morales v. Morales, 464 Mass. 507, 509-510

(2013). "Although the guidelines have been subject to periodic

revision since their enactment, an essential premise has

remained constant: that child support should be calculated as a

8
When determining the appropriate duration and amount of
alimony:

"[A] court shall consider: the length of the marriage;
age of the parties; health of the parties; income,
employment and employability of both parties, including
employability through reasonable diligence and additional
training, if necessary; economic and non-economic
contribution of both parties to the marriage; marital
lifestyle; ability of each party to maintain the marital
lifestyle; lost economic opportunity as a result of the
marriage; and such other factors as the court considers
relevant and material."

G. L. c. 208, § 53(a). "A court must consider these same
factors in determining whether the amount of alimony should be
modified based on a change of circumstances following entry of
an earlier judgment for alimony." Pierce v. Pierce, 455 Mass.
at 295 (discussing alimony factors set forth in G. L. c. 208,
§ 34, prior to enactment of Act).
 11

percentage of parental income." P.F. v. Department of Rev., 90

Mass. App. Ct. 707, 709 (2016), quoting from M.C. v. T.K., 463

Mass. 226, 232 (2012). The guidelines permit a judge to modify

a child support order if "there is an inconsistency between the

amount of the existing order and the amount that would result

from the application of the child support guidelines"

(inconsistency standard), or if "any other material and

substantial change in circumstances has occurred" (material

change in circumstances standard). Guidelines § III-A.

While the precise methods for calculating and modifying

child support and alimony differ somewhat, both depend in large

part on the parties' financial circumstances. Accordingly, the

central inquiry in a case involving modification of both child

support and alimony is whether, and to what extent, the parties'

financial circumstances have changed since the entry of the

prior judgment. "The change may be in the needs or the

resources of the parties . . . or in their respective incomes."

Kernan v. Morse, 69 Mass. App. Ct. 378, 383 (2007), quoting from

Fugere v. Fugere, 24 Mass. App. Ct. 758, 760 (1987).9

9
We note that the criteria for determining a party's income
is the same for purposes of both alimony and child support. See
G. L. c. 208, § 53(b) (for purposes of calculating alimony
"income shall be defined as set forth in the Massachusetts child
support guidelines").
 12

Here, the husband sought a downward modification of his

alimony and child support payments on the basis that his income

from SEED was substantially lower than his income at the time of

the divorce. However, the divorce judge concluded that the

husband was not entitled to modification because his decision to

resign from NMH, and the resulting reduction in his income, was

"voluntary." The judge found that because the husband "was

earning less at the time of the [modification] trial . . . than

prior to the divorce by his own choosing," it was appropriate to

attribute income to the husband consistent with his prior NMH

salary. The husband claims that the judge's attribution of

income to him was error. We agree.

At the outset, we note that "attribution of income in the

alimony context is not different in rationale from that in the

child support context." C.D.L. v. M.M.L., 72 Mass. App. Ct.

146, 153 n.5 (2008). Accordingly, the discussion that follows

applies to both alimony and child support.10

"In the proper circumstances, '[a] judge is not limited to

a party's actual earnings but may . . . consider potential

earning capacity' when attributing income." Id. at 152, quoting

from Heins v. Ledis, 422 Mass. 477, 485 (1996). However, before

doing so, the judge must make a determination that a party is

10
Both the Act and the guidelines permit a judge to
attribute income to a party who "is unemployed or
underemployed." See G. L. c. 208, § 53(f); Guidelines § I-E.
 13

capable of earning more with reasonable effort. See Flaherty v.

Flaherty, 40 Mass. App. Ct. at 291. Indeed, "the Child Support

Guidelines and the case law specifically provide that an

attribution tied to earning capacity is to be based on whether a

party has exercised reasonable efforts in seeking employment."

Ulin v. Polansky, 83 Mass. App. Ct. 303, 307 (2013). See

Guidelines § I-E ("If the Court makes a determination that

either party is earning less than he or she could through

reasonable effort, the Court should consider potential earning

capacity rather than actual earnings in making its order").

When determining the earning capacity of a party who has

recently undergone a career change, we have said that

"[a]ttribution of income may be appropriate when a judge

determines a career change is voluntary." Flaherty v. Flaherty,

supra. In such voluntary career change cases, attribution based

on a party's prior earning capacity has been permitted when that

party has voluntarily left his or her job and has thereafter

failed to make reasonable efforts to secure comparable

employment. This may occur when a party has taken an early

retirement, or has chosen to pursue work in a totally unrelated

field at a substantially reduced salary, despite the

availability of higher-paying jobs commensurate with that

party's education, training, and experience. See, e.g., Schuler

v. Schuler, 382 Mass. at 372 (affirming attribution of income to
 14

husband who, after being terminated from job, chose "to wait

indefinitely upon the limited prospect of becoming president of

a corporation" instead of taking readily available position as

engineer); Canning v. Juskalian, 33 Mass. App. Ct. 202, 209-211

(1992) (affirming attribution of income to wife who resigned

from job to stay at home with child from subsequent marriage);

Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 735-736 (1995)

(affirming attribution where husband voluntarily retired from

his job as letter carrier earning $735 per week to work as

missionary with pension income of $235 per week); C.D.L. v.

M.M.L., 72 Mass. App. Ct. at 152, 158 (affirming attribution of

income to husband who, after resigning as partner in large law

firm, "made minimal attempts to obtain employment" and "only

applied for jobs in areas for which he had little or no

experience").11

Here, it is apparent that the judge viewed this as a

voluntary career change case. As we have noted, the judge

"[found] it appropriate to attribute to [the husband] his NMH

salary in light of his voluntary resignation from his position

11
Compare Ulin v. Polansky, supra (reversing attribution of
income where there was evidence that wife was "sincere in her
job search" after resigning from previous job, yet judge failed
to make specific finding whether wife had exercised reasonable
efforts to obtain employment); Flaherty v. Flaherty, supra
(reversing attribution of income to husband who was recently
"laid off from his job" and "was readying himself to seek new
employment").
 15

as Head of School at NMH."12 This was error. The facts of this

case are distinguishable from the voluntary career change line

of cases. The husband did not take an early retirement, nor did

he resign from NMH to pursue a less lucrative career in a

completely unrelated field. Moreover, while the judge found

that "[t]he [h]usband's position at NMH remained available to

him, but for his resignation," there was no evidence

12
The husband contends that the judge's finding regarding
the voluntariness of his resignation from NMH was clearly
erroneous. However, the judge's finding was based largely on
his assessment of the husband's credibility at trial -- a
finding that "[w]e will not reverse . . . unless we are
convinced [it is] plainly wrong." Zaleski v. Zaleski, 469 Mass.
230, 237 (2014), quoting from Felton v. Felton, 383 Mass. 232,
239 (1981). The judge found that "[a]lthough the [h]usband
testified that he resigned to 'smooth the waters' at NMH after
revelation of an extramarital affair, there was absolutely no
evidence presented at trial that the [h]usband was forced or
requested to resign as Head of School at NMH." The judge
declined to "credit the [h]usband's testimony that he had no
expectation that his contract would be extended after June,
2012." While "[i]t is settled that mere disbelief of testimony
does not constitute evidence to the contrary," Kunkel v. Alger,
10 Mass. App. Ct. 76, 86 (1980), we cannot say that the judge
was plainly wrong in concluding that the husband failed to
present credible evidence that he was forced to resign. This is
especially true where, as here, the husband's own testimony
regarding the circumstances of his resignation was somewhat
vague and contradictory. The husband testified that he was
unable to discuss the terms of his resignation due to a
confidentiality agreement, and that he did not initially believe
that disclosing the affair to Chardack would cost him his job.
While we decline to disturb the judge's finding as to the
voluntariness of the husband's resignation from NMH, we note
that it is not dispositive of the attribution issue.
 16

demonstrating that the husband's employment with NMH would

continue indefinitely.13

Regardless of the circumstances surrounding the husband's

resignation from NMH, the judge was still required to consider

whether, at the time of the modification trial, the husband

could earn more with reasonable effort. See P.F. v. Department

of Rev., 90 Mass. App. Ct. at 711 ("[I]n Massachusetts, the

relevant inquiry for attribution of income is not whether the

payor's unemployment was 'foreseeable'; it is whether the payor

is presently able to obtain employment through 'reasonable

efforts'"). The reasonable efforts inquiry is critical, and is

generally the determining factor in whether to affirm the

attribution of income to a party based on his prior earning

capacity. See, e.g., C.D.L. v. M.M.L., 72 Mass. App. Ct. at 157

(in affirming attribution of income to husband, court gave

"special weight to the judge's finding that the husband was

'earning less than he could with reasonable efforts'"). Indeed,

as we have previously observed, "neither this court nor the

Supreme Judicial Court has affirmed an attribution of income

13
While there was some evidence (namely, Chardack's
December, 2010, letter of intent) indicating the potential for a
contract extension through June, 2015, there is nothing in the
record indicating that the husband's employment would be
extended beyond that date. Indeed, the husband's predecessor
served as head of school for six years, and the head of school
prior to that served for eight years. By the time of his
resignation in May, 2011, the husband had already served as head
of school for seven years.
 17

made without a finding concerning the party's reasonable efforts

to secure employment." Ulin v. Polansky, 83 Mass. App. Ct. at

307.14

In making such a finding, the judge must "consider all

relevant factors including without limitation the education,

training, . . . past employment history of the party, and the

availability of employment at the attributed income level."

Guidelines § I-E. See Flaherty v. Flaherty, 40 Mass. App. Ct.

at 291 ("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"). Here, the judge found that the husband is "highly

employable," having "advanced steadily in his career in academia

throughout the parties' marriage." However, the judge did not

make a specific finding regarding the reasonableness of the

14
In Ulin v. Polansky, a case with facts similar to those
of the present case, the wife voluntarily resigned from her job
because she "believ[ed] that she could not reasonably meet"
sales goals imposed by her new supervisor. 83 Mass. App. Ct. at
304. The trial judge found that while the wife's resignation
was voluntary, "she had no other decision but to do so given the
proposal with which she was faced." Id. at 305. The wife
maintained that she was actively looking for work but had not
been able to secure a new job. Id. at 304. However, the judge
found that the wife was "presently able to obtain employment,"
and attributed an annual income to her of $120,000. Id. at 305.
This court ultimately reversed and remanded, concluding that the
"attribution rest[ed] on insufficient factual findings" because,
notwithstanding the wife's voluntary resignation, the judge
failed to make a specific finding as to "whether [the wife] had
exercised reasonable efforts in her job search." Id. at 306-
307.
 18

husband's efforts to secure employment. Instead, the judge

simply "credit[ed] the [h]usband's testimony about his job

search efforts after his resignation from NMH." The testimony

credited by the judge details the husband's extensive job search

spanning eleven months (from June, 2011, to May, 2012) during

which the husband (1) applied for dozens of positions in the

private education sector, the majority of which were head of

school or similar positions; (2) traveled frequently, often

several times per month (including to Boston, New York,

Connecticut, California, and China), to attend numerous

interviews, meetings, and job fairs; (3) worked with several

recruiters and job search agencies; (4) reached out continuously

to his contacts in the education field regarding potential job

openings; and (5) worked on developing skills in educational

technology to further enhance his marketability. These efforts

to secure a permanent position resulted in a single job offer,

the head of school position at SEED, which the husband accepted.

Rather than assessing the reasonableness of the husband's

job search leading up to his acceptance of the SEED position,

the judge instead found that "once the [h]usband obtained his

position with the SEED Foundation in May, 2012, he ceased making

any efforts to find employment that paid a salary commensurate

with that he had made at NMH." It is neither reasonable nor

fair to expect the husband, after he has engaged in an extensive
 19

job search in his field of expertise and has secured employment

commensurate with his training and experience, to continue his

job search efforts indefinitely to avoid the risk of income

attribution. Compare Schuler v. Schuler, 382 Mass. at 371-372;

C.D.L. v. M.M.L., 72 Mass. App. Ct. at 150, 158. Accordingly,

not only did the judge fail to make a specific finding that the

husband could earn more with reasonable effort, it is apparent

that such a finding cannot be made on this record.15

In light of the foregoing, we conclude that "[t]he criteria

for attribution of income were not met in this case." P.F. v.

Department of Rev., 90 Mass. App. Ct. 707, 710 (2016). See Ulin

v. Polansky, 83 Mass. App. Ct. at 307 ("without a specific

finding" that party has failed to exercise reasonable efforts to

obtain employment, "attribution tied to an earning capacity

. . . . rests on insufficient factual findings"). As such, the

husband's support obligations must be based on his present

15
It is worth noting that while the judge failed to give
appropriate attention to the required "reasonable efforts"
inquiry, he appeared to consider an impermissible factor -- the
husband's conduct -- when deciding to attribute income to him.
The judge specifically found that "[t]he [h]usband's resignation
from his position as Head of School was voluntary and was the
result of his affair with a subordinate. The [h]usband's
willful and deceptive behavior resulted in the resignation.
. . . As a result of the [h]usband's resignation, the [w]ife
lost her housing, access to unlimited meals at no charge, use of
a vehicle, subsidized vacations and numerous other benefits."
"[W]e caution against the view that . . . alimony . . . may be
justified purely on the basis of the blameworthy conduct of one
of the spouses." Putnam v. Putnam, 5 Mass. App. Ct. 10, 15
(1977).
 20

income. Flaherty v. Flaherty, 40 Mass. App. Ct. at 291. We

therefore vacate the dismissal of the husband's complaints for

modification and remand for a redetermination of the husband's

support obligations consistent with his actual, rather than

attributed, income.

2. Contempt. The husband argues that the contempt judge

abused her discretion by failing to modify the husband's alimony

arrearages and ongoing alimony payments once she determined that

the husband lacked the ability to pay. "A Probate Court has

power to modify a support order in the context of either a

complaint for contempt or a complaint for modification. . . .

This power may be exercised not only as to future obligations,

but also as to arrearages." Kennedy v. Kennedy, 17 Mass. App.

Ct. 308, 312 (1983), and cases cited. But see G. L. c. 119A,

§ 13(a) (child support arrearages are only subject to

retroactive modification during period in which complaint for

modification is pending). Here, we need not reach the issue of

whether the contempt judge properly exercised her discretion in

declining to modify (both retroactively and prospectively) the

husband's alimony payments, because we have already concluded

that the divorce judge abused his discretion in declining to

grant the husband's request for a downward modification of his

support obligations.
 21

Conclusion. The judgment after remand dated January 18,

2016, is vacated, and the matter is remanded for the limited

purpose of recalculating the husband's child support and alimony

obligations based on the husband's actual income at the time of

the modification trial.16 The modification of the husband's

alimony and child support obligations shall be effective as of

the date of the original judgments of dismissal entered on

October 24, 2013.

The judgment on complaint for contempt (after remand) dated

February 16, 2016, is vacated, and the matter is remanded for

recalculation of the husband's alimony arrearages, if any,

following the modification of his support obligations on

remand.17

So ordered.

16
On remand, the judge may consider, in addition to the
husband's salary, any "perquisites or in-kind compensation to
the extent that they represent a regular source of income" to
the husband. Guidelines § I-A-20.
17
The wife's request for appellate attorney's fees and
costs is denied.