Section Review

Employability and Hireability in Massachusetts

As the economy continues to slope, an assessment of a party's employability used to calculate child support guidelines and/or spousal support requires greater scrutiny and evaluation. The issues of employ

To lay the aforementioned foundation, identifying a vocational expert to offer consulting services during the pendancy of the litigation or to be hired as an expert witness is preferable in lieu of the facetious declaratory charge, "The wife can work at McDonalds, your Honor".

ability and hireability (emphasis added) are intrinsically related to vocational skills, amounts and sources of income together with the opportunity of each for future acquisition of capital assets and income. It remains a mandatory statutory factor in accordance with M.G.L. c. 208, § 34 (2006) that must be considered relative to asset division and alimony. This same analysis applies to child support orders in the context of both divorce and paternity actions (in addition to modification cases). As with M.G. L. c. 208, § 34, the same basic evidentiary foundation should be laid in matters of child support awards pertaining to divorce and paternity. Consideration of employability and hireability, vocational skills, amounts and sources of income together with assets, current and future, substantiates a finding of earning capacity from which the court may attribute income. Section II (H) of the new Child Support Guidelines entitled "ATTRIBUTION OF INCOME" allows a court, once the evidentiary groundwork has been laid, to make a finding that either party is capable of working and is unemployed or underemployed. The Court must consider all relevant factors including the education, training, health and past employment history of the party, and the age, number, needs and care of the children covered by this order. Now that the Child Support Guidelines Task Force has eliminated the provision of precluding attribution of income for a custodial parent with children who are under the age of six, it will very likely expand the necessary inquiry to include both parties.

The Role of the Vocational Expert

The role of a vocational expert or consultant, also known as employability experts and/or employability and/or rehabilitation consultants, varies depending upon case facts. Before a practitioner engages the expert, it is important to understand his or her field, which may be distinguished from others holding a similar title. Attorneys advancing or disputing workers compensation claims have consistently relied upon this testimony. Attorney Michael Walsh of Westwood provides historical context:

The use of vocational counselors has become an intrinsic part of representing injured claimants in the Workers Compensation system, especially employees who suffer career changing injuries.  Such expert testimony can persuade judges (and insurers) of the likelihood that an individual will be able to return to, and more importantly, sustain a successful return to the workforce.

Certain vocational consultants measure a party's physical and mental abilities to perform tasks , determining their level of aptitude and skill by measuring current or residual ability. A person, for example, who recently suffered a foot injury with little experience playing football, would not be a prospective recruit as place-kicker for the New England Patriots. These professionals measure a person's capacity to perform specific tasks as well as a person's capacity to sustain the performance. A person's age, education, prior work history and current physical and emotional capacity are reviewed. A skills assessment may be included. If one party places his health before the court claiming a diminished earning capacity due to a purported disability, medical testimony and/or testimony of rehabilitation specialists becomes relevant and material. Once a foundation is established to show the basis for employability, the right field expert can make or break a case.

Real Time Jobs

Professionals with years of experience in employment, recruiting and job placement can be invaluable to practitioners, locating actual jobs and compensation packages for discovery and trial. For litigants who maintain they cannot find employment commensurate with their past experience, can only work below their level or who claim injury but have the earning capacity, accessing open positions can be extremely helpful, not only to his or her spouse and/or support obligor, but also to the court. Key to proving a person's earning capacity is to focus on a realistic match between that person's knowledge and education, skills, abilities and experience, and employability with the needs of employers in today's marketplace. The contemporary job search has become multi-dimensional due to the shifting economy, the speed of decision-making and the influence of a person's interest in and commitment to the employment process. According to studies conducted by the

An employability consultant should demonstrate the skills and industry knowledge to reach beyond classified ads and job boards to explore additional marketplace opportunities, utilizing up-to-date research tools and tapping into active recruitment networks. Consultants active in the employment field are ideal. Aggressive job searches focus on current functional skills, compensation potential, and industry requirements e.g., academic degrees, credentials and experience. Although a person may appear outwardly qualified based upon prior experience, the current market drives her value (compensation/perquisites) and hireability (likelihood of landing the position now) as opposed to substantial reliance on dated census data. Locating open and available positions in companies actively hiring and income potential within a targeted geographic area remains key. This offers practitioners and courts evidence of a party's true employability/hireability now and in the near future. According to David E. Cherny, Esq. of Boston

Such "real time" information would directly assist the court, assessing the quality and integrity of a party's job search. All too often, probation officers are asked to make a determination without any reliable foundation. With specific findings, however, relevant information to assess job prospects of a party who remains, over time, both jobless and purportedly without an earning capacity sufficient to support children and/or spouse becomes available. Once that information leading to a finding of earning capacity has been discovered, a spirited contest of admissibility and challenge may arise. Consequently, sufficient preparation is critical.

Wall Street Journal, the United States Bureau of Labor Statistics and Drake Beam Morin, 60-90% of all jobs are found through networking. Locating a dozen positions that loosely match someone's previous job title does not translate into a productive job search. It requires a greater dimension. Today, dour headlines regarding job loss can mislead. Tracy Jan's article in The Boston Globe, January 29, 2009 reported that Northeastern University was actively seeking 46 professors from Nanotechnology to Public Health, Tufts was seeking 52 faculty members and Emerson, Holy Cross and Amherst were creating teaching positions. As of April 19, 2009, Fortune Magazine posted 28 companies, each offering 150 available positions, others posting thousands of opportunities.1 For the express purpose of finding employment for a party embroiled in litigation, successful researchers require the expertise to navigate the employment marketplace, utilizing professional networks and proven skills in recruiting, placement and career management. This process also addresses the spouse who has no intention of working, conducting a half-hearted effort instead. , "employability is a statutory factor. Consequently, use of a vocational expert in a divorce case can be critical, providing the judge with evidence he or she needs to hang their hat on a finding of earning capacity, employability and hireability."

Admissibility and Challenge

In order for the court to properly allow an expert to testify at trial, the party seeking admissibility of the expert's testimony must satisfy a two-pronged test: (1) relevancy and (2) reliability.2 Beyond scientific testimony, courts have applied Daubert standards in

The court, when considering the inclusion or exclusion of expert testimony, remains the gatekeeper of the proffered expert opinion. Case law indicates that application of Daubert factors are fact dependent, flexible, and relate to the nature of the inquiry at bar. The

Kumho Tire Co., Ltd v. Carmichael,3 Santos v. Chrysler Corp.4 and most recently in Salvas v. Wal-Mart Stores, Inc.5 The primary subject of judicial inquiry is to assess whether the expert's opinion is sufficiently reliable and relevant to assist the trier of fact.6 For example, testimony substantially based on aged employment data may be justifiably attacked. Kumho Tire case expanded Daubert's scope to include nonscientific expertise, further emphasizing that "[t]oo much depends upon the particular circumstances of the particular case at issue."7 Kumho ruled that it is up to the judge's broad latitude whether Daubert's list of specific factors necessarily or exclusively applies to all experts or in every case.8 The consistent theme throughout the case law is that no single test of relevance or reliability applies to every situation, and that the judicial inquiry is "a flexible one."9 The court has broad discretion when ruling on the admissibility of evidence based on its relevance and reliability.10 In Beaupre v. Cliff Smith & Assocs., the court distinguished the case from those involving a challenge to a medical opinion that lacked a basis in reliable scientific methodology. The court underscored "the extensive discretion of trial judges with respect to both the process of discovery and the admission of evidence, particularly expert testimony and the great deference appellate courts accord the rulings of trial judges in these areas … . "11 In sum, decisional (and statutory) laws in Massachusetts as regards the admissibility of evidence in addition to evolving case law regarding foundational requirements support findings of earning capacity and income attribution.

Decisional Law

Where a party has manipulated their employment status by divestment or otherwise, the courts in those circumstances have often looked to the assets retained when fashioning an award. In the case of

In many cases, earned income cannot be viewed in a vacuum. Where there are resources to meet obligations, the assets the parties hold must be considered part of the formula.14 In particular, the Appeals court in

Contrary to

Commonwealth vs. Howard,12 for example, the wife testified that her former husband told her he would never pay whereupon he voluntarily left his position of employment. The lower court found ample evidence to substantiate that the defendant's earning capacity was sufficient to comply with the support order, and that he willfully failed to meet those obligations by manipulating his earnings in an attempt to fabricate an inability to pay. The Appeals court affirmed. Even more recently in Smith v. Edelman,13 the wife filed a Complaint for Modification of a Divorce Judgment, seeking additional contribution toward private school tuition costs and an increase in child support, based principally on a substantial increase of defendant's husband's income. The Probate court (Harms, J.) ordered the husband to make additional contributions toward tuition costs but denied the wife's request for an increase in child support. On review, the Appellate court upheld Judge Harms' finding that there was no material disparity in living standards in the parents' homes and even if the court accepted the wife's contention that the husband was capable of providing a greater financial contribution toward the children's needs by reason of his increased income, the court rejected her suggestion that his increased capacity compelled a child support increase, at least where the increased capacity had not resulted in a material disparity in the parties lifestyles. The court went on to rule that to the extent there was evidence to suggest that the wife struggled to maintain her elevated status, in comparison to the relative ease the husband was able to maintain his lifestyle, the court was within its discretion to attribute the wife's strain principally to her election not to obtain more lucrative employment. The wife chose not to work for a period of time and when she began working again, she began working an 18- hour workweek at $15.00 hourly. At trial, the wife, a college graduate who had not worked after the first year of the parties' marriage, was found underemployed by choice. By implication, the court made clear that the wife's earning capacity should have been greater. However, because she was the recipient and not the obligor, the court did not further address the issue of attribution. Barron v. Barron vacated the judgment of divorce as it pertained to health insurance and alimony for the wife and remanded the matter to the Probate court.15 The circumstances before the court included a twelve (12) year marriage, second marriages for both parties. Other than a 40K award to the wife, the court left the parties' individual estates intact. The court ordered the husband to contribute to the wife's legal fees together with $300.00 weekly in support for five years. The Appeals court held that "it does not take great business acumen to understand that the husband virtually gave a profitable successful business to his son, thereby divesting himself of the means by which to meet his support obligations," concluding that the court is not restricted by an obligor's ability to manipulate his resources to avoid his legal obligations, describing that any limits on the husband's ability to provide support to the wife were self-imposed. Citing Krokyn v. Krokyn,16 Pagar v. Pagar,17 and Wolfe v. Wolfe18Barron, the Appeals court upheld the Probate court's award in Crowe v. Fong, properly taking into account the father's present and future earning capacity, including his demonstrated ability to earn income and acquire assets by employment, business investments, and by the acquisition of capital assets.20 The court (McGregor, J.) ruled that the trial court gave appropriate weight to the fact that the father's testimony was fraught with deception in an attempt to hide his net worth and his ability to pay child support. With particularity, the court found that Fong's testimony (and that of his parents) were not credible, and that "through maneuvering of … assets, the family had arranged it such that with minimal reported income, Fong and his household were able to live in a large waterfront home, drive a Volvo, spend $7500 for wedding rings and allegedly dispose of approximately $115K in a three year period."21

Distinguished from cases involving asset manipulation, Probate courts have made findings based directly on a party's election to forebear in seeking employment or more lucrative employment.





2.  Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 595 (1993).

3.  526 U.S. 137 (1999).

4.  430 Mass. 198 (1999).

5.  452 Mass. 337 (2008).

6.  Cetrulo & Capone, LLP., Lecture at Massachusetts Continuing Legal Education: Daubert-The Fundamentals of an Expert Challenge (Jan. 28, 2009).






12.  62 Mass. App. Ct. 422, 423-24 (2004).

13.  68 Mass. App. Ct. 549, 550 (2007),


15.  28 Mass. App. Ct. 755 (1990) (citing Shuler v. Shuler, 382 Mass.366, 373-375 (1981)).

16.  378 Mass. 206, 210 (1979).

17.  9 Mass. App. Ct. 1, 5-7 (1980).

18.  21 Mass. App. Ct. 254, 257 (1985).


20.  45 Mass. App. Ct. 673 (1998).


See Christopher Tkaczk, They're Hiring!, Fortune, available at also Canavan's Case, 432 Mass. 304 (2000) and Commonwealth v. Lanigan, 419 Mass. 15 (1994) for the application of the Daubert standard in Massachusetts.Kumho Tire, 526 U.S. at 150.Id. at 142.Daubert, 509 U.S. at 594.Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480 (2000).Id. at 485.See Katz v. Katz, 55 Mass. App. Ct. 472 (2002). Barron, 28 Mass.App.Ct. at 759-60.Id. at 676. the court stated plainly that which cannot be misconstrued. "These cases stand for the proposition that one cannot alienate assets while continuing to enjoy their fruits and expect the court to hunt for an unencumbered source of income to satisfy obligations."19

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