Recently, in Kelley v. Kelley, 64 Mass. App. Ct. 733 (2005), the Massachusetts Appeals Court held that a reduction in alimony based on an earning capacity theory was erroneous where a wife continued to be the primary caregiver of the parties' three minor children and to work as a part-time artist. In reversing the alimony reduction, the court reaffirmed the traditional concepts of alimony and expressed the court's long-established reluctance to attribute income to a primary caregiver, declaring that "individuals are often capable of earning more money than they presently do, but career choices are influenced by a number of factors, including family, education, training and personal interests …."
The fundamental purpose of alimony has historically been to provide economic support to the dependant spouse at a level commensurate with the dependent spouse's actual need for support and maintenance and the standard of living enjoyed by the dependent spouse during the marriage. Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986); Partridge v. Partridge, 14 Mass. App. Ct. 918, 919 (1982).Toward that end, in determining whether to enter an alimony order or to limit the duration or amount of an order, the Probate and Family Courts have traditionally been adverse to relying upon the income-producing potential of a spouse and parent who has been out of the job market for an extended period. See, e.g., Grubert v. Grubert, 20 Mass. App. Ct. 811, 820 (1985) (In a lengthy marriage, where the wife had no significant work experience or training, and who rarely worked, the court stated it is improper for her to be expected to "make up in the marketplace what her husband plainly has the ability to provide."); Goldman v. Goldman, 28 Mass. App. Ct. 603, 610-11 (1990) (Stating that the lower court improperly emphasized full-time earning capacity of the wife, who had not worked during their long-term marriage, had to be retrained, and wished to work only part time to care for her child); and Deluca v. Deluca, 26 Mass. App. Ct. 191, 192 (1987) (Stating that a housewife who had raised her children for years "should not now be required to serve hamburgers or accept comparable employment at minimum wages unless the situation absolutely requires it.").
In Kelley, the plaintiff, Leroy Kelley ("Leroy") and the defendant, Susan Kelley ("Susan") were married on March 17, 1984. Three children were born from this marriage: Brian (born Feb. 18, 1987) and, twins David and Erin (born Feb. 1, 1994). At the time of the divorce trial, Leroy was a self-employed podiatrist. Susan was a homemaker and artist, and was primarily responsible for child-care duties. Susan had worked out of the marital home two half-days a week as a receptionist in one of Leroy's offices from 1987 to 2000, during which time she also worked as an artist. Since then, she had worked only as an artist.
On Dec. 22, 2000, the Norfolk Probate and Family Court issued a judgment of divorce nisi, which ordered Leroy, inter alia, to pay Susan $425 a week as child support and $600 a week as alimony. The court recognized Susan's inability to work and stated in its rationale for the divorce judgment that "in the years to come," tending to the needs of the children, particularly the twins [age 6], would "affect and impact" Susan's "ability to obtain regular, gainful employment." The court opined that:
If [Susan] is unable to earn even a modest amount of money from her artistic endeavors within the next few years, if not sooner, she will have to rethink the efficacy of such a career as a means of improving her standard of living. However, given the ages of the parties [late 40s], their employment histories and prospects, and their family responsibilities, it is likely that alimony of some type will be paid by [Leroy] through his normal retirement.
On March 5, 2003, less than three years after their divorce, Leroy filed a complaint for modification seeking a reduction or elimination of his alimony obligations based on an alleged decrease in his income and increase in his costs for health insurance coverage for Susan and the children. At the commencement of the trial on Leroy's complaint for modification on Sept. 22, 2003, Susan filed a motion in Limine, seeking the court to prohibit Leroy from permitting any testimonial evidence on Susan's financial circumstances because Leroy's claim for a reduction in alimony was limited to changes in his financial circumstances.
The trial was held on Sept. 22, 23, and 24, and Oct. 8 and 14, 2003. At the conclusion of the trial on Oct. 14, the court allowed Leroy to amend his modification complaint to include the issue of Susan's earning capacity in order to avoid having the parties return on another complaint for modification on that issue. The court continued the trial to Nov. 24, 2003 to allow the parties to retain vocational experts concerning Susan's earning capacity. Susan and the parties' respective vocational experts testified at the last day of trial.
At the time of the modification trial, the trial judge found that Leroy continued to work as a self-employed podiatrist. Although he claimed his income had decreased since the divorce judgment, the trial judge determined that his income had actually increased since their divorce. The court also found that Susan was historically and continued to be a homemaker, the primary custodian of the parties' three children, who were ages 16 and 9, and a part-time artist. Prior to the parties' marriage, Susan attended but did not graduate from Framingham State College. Her real estate broker's license that she obtained before the marriage was not currently active because her child-related duties precluded her from working nights and weekends unless she paid for childcare. Susan also continued to paint every day around the children's schedules and received income from selling her paintings as well as teaching painting classes. She acknowledged that in the previous six years, her income as an artist never exceeded her expenses; however, she taught painting at workshops and she sold her paintings at prices that had increased over the years.
After the parties' and their vocational experts testified, the trial court ultimately found, inter alia, that Susan should be capable of earning approximately $500 a week in a clerical position. Based on an attribution of income theory, the court reduced Leroy's alimony obligation by $200 per week. The court also found, with respect to Leroy's financial circumstances, that Leroy's reported income had actually increased since the divorce; that Leroy had engaged in disingenuous and calculated conduct to disengage from the management and operation of his podiatry business; and, that Leroy had an earning capacity significantly beyond the salary reported on his trial financial statement.
The Kelley court subsequently reversed the lower court's reduction of alimony after it examined the appropriate circumstances warranting the court's discretion to impute income to a support recipient and in light of all of the relevant circumstances, including Leroy's increase in income since their divorce. In so doing, the Appeals Court reaffirmed the traditional concepts of alimony by declaring that it was improper to impute income for purposes of reducing support to a spouse who continued post-divorce to both attend to the minor children's day-to-day needs and focus on a career that was consistent with that spouse's education and skills and the needs of the minor children. The Appeals Court decision also ensures that the fundamental principles of alimony are not circumvented by an earning capacity theory to a dependent spouse who remained out of the workforce throughout the marriage to care for the minor children of the marriage.