Argued: September 8, 2014.
Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on December 19, 2006.
A complaint for modification, filed on June 10, 2011, was heard by Spencer M. Kagan, J., and a motion to amend the judgment was considered by him.
Mary Beth L. Sweeney ( Catharine V. Blake with her) for the wife.
Patricia A. DeJuneas for the husband.
Present: Trainor, Rubin, & Sullivan, JJ.
[22 N.E.3d 953] Sullivan, J.
Veronica Vedensky, the former wife, appeals from an amended judgment of modification of the Probate and Family Court, which, among other things, orders her to pay to Dmitry Vedensky, the former husband, rehabilitative alimony in the amount of $635 per week for 104 weeks. See G. L. c. 208, § § 37, 53. Veronica contends that the complaint for modification of alimony was barred by a previous complaint for modification of child support, and that the award of rehabilitative alimony was improper. We conclude that the complaint for modification of alimony was not barred by the adjudication of the complaint for modification of child support. We also conclude that the judge did not abuse his discretion in awarding rehabilitative alimony, but erred in his consideration of the wife's income from a second job which commenced after the entry of an " initial order." G. L. c. 208, § 54( b )(2), inserted by St. 2011, c. 124, § 3. Accordingly, we vacate so much of the amended judgment of modification as applies to alimony and alimony-related conditions, and remand for further proceedings. In all other respects, the amended judgment of modification is affirmed.
We summarize the history of the case and the facts
found by the judge, reserving certain details for discussion in connection with
the specific issues raised. The judgment of divorce nisi entered on March 14,
2007, incorporating a separation agreement signed by the parties on November 2,
2006. The separation agreement, executed when both parties were fully employed,
waived past and present alimony, but contained a reservation of rights to future
alimony. Veronica was also designated
primary physical custodian and Dmitry was ordered to pay child support in the amount of $230 per week.
The parties enjoyed an upper middle class station in life during the marriage. Dmitry is highly educated, holding a doctorate in applied mathematics, and a " Masters of Science degree in finance." Before the divorce, Dmitry was employed in the financial, engineering, and technology industries, earning a six-figure salary. He began, however, to experience difficulties at work, took disability leave, and returned to a different job at a lower rate of pay. Two years after the divorce, in April of 2009, Dmitry again took short-term disability leave, and did not return to full-time work. In November of the same year he began to receive Social Security disability [22 N.E.3d 954] income (SSDI) benefits for a psychiatric disability.
On December 7, 2009, Dmitry filed a complaint for modification of the 2007 judgment. He requested a reduction of his child support obligation, citing his job loss, disability, and the availability of SSDI dependent benefits. In 2010, a judgment of modification entered relieving Dmitry of his child support obligation pursuant to an agreement between the parties in which Veronica received SSDI dependent benefits on behalf of the parties' minor child.
Dmitry's unemployment persisted. Dmitry filed the present complaint for modification requesting alimony on June 10, 2011. Veronica moved to dismiss, claiming that Dmitry failed to demonstrate that a material change in circumstances had occurred since the earlier judgment modifying his child support obligation. The judge deferred ruling on the motion to dismiss, and set the complaint for trial. A five-day trial was held in 2013 at which Dmitry's treating psychiatrist testified, as well as Veronica's vocational and psychiatric experts. The judge ordered that Veronica pay $635 per week in rehabilitative alimony to Dmitry for a period of 104 weeks.
By the time of trial Dmitry had begun part-time work as a teacher at a school of mathematics, but the hours he was allotted by the school were inconsistent. He earned approximately $650 per month, and continued to receive SSDI benefits. At the time of the divorce, Veronica, a physician, was employed earning $122,720 annually. At the start of the trial she was employed at a local medical center, ...