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Macri v. Macri

Appeals Court of Massachusetts, Middlesex

November 1, 2019

THEODORE W. MACRI, JR.
v.
SHEILA MARY MACRI.

          Heard: February 4, 2019.

          Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on July 25, 2011. Following review by this court, 89 Mass.App.Ct. 1115 (2016), the case was heard by Patricia A. Gorman, J.

          Susan E. Stenger for the husband.

          Rachael M. Soun (David E. Cherny also present) for the wife.

          Present: Green, C.J., Agnes, & Desmond, JJ.

          DESMOND, J.

         Theodore W. Macri, Jr. (husband), the former spouse of Sheila Mary Macri (wife), appeals from a Probate and Family Court judgment, dated January 12, 2018, entered after remand (remand judgment), challenging (1) the amount of income attributed to him, (2) the amount of unallocated support (combined alimony and child support) awarded to the wife, and (3) the transfer of sole legal custody of the parties' child to the wife. We affirm.

         Background.

         The parties, who married in May of 1998, lived in New York City until the husband's employer, Deutsche Bank, promoted him to a position in Singapore in April of 2000. In 2005, the husband was transferred to Hong Kong, where he remained until his resignation from Deutsche Bank in 2011. Between 2008 and 2011, the husband's annual earnings at Deutsche Bank ranged from $751, 680 to $1, 034, 028. The wife initiated divorce proceedings in Hong Kong in 2008 and was permitted to relocate to Massachusetts with the parties' child in August of 2010. The husband moved to Massachusetts in 2011 and filed complaints regarding child support and custody in the Probate and Family Court. A four-day trial was held before a judge of the Probate and Family Court, concluding in September of 2012.

         A judgment, dated December 31, 2013 (as amended on May 28, 2014), issued in which the judge (1) granted the parties joint legal custody of their child, (2) attributed an annual income of $400, 000 to the husband, who was unemployed at the time of the trial, and (3) ordered the husband to pay unallocated support of $10, 000 per month. The husband appealed from the amended judgment, principally challenging the amount of income attributed to him. This court vacated so much of the amended judgment as set forth the unallocated support order and remanded the matter for a redetermination of the husband's earning capacity, stating that the attributed annual income of $400, 000 was "inappropriate" insofar as it was "base[d] [on] the husband's . . . earnings he made from another country" without "any expert testimony on the husband's earning potential in the United States" or on any "comparable salaries." Macri v. Macri, 89 Mass.App.Ct. 1115 (2016). The wife thereafter filed a counterclaim seeking to modify legal custody, which was consolidated with the remanded support matter and tried over the course of two days before the same judge in December of 2017. Dr. Peter Cohen, a "vocational consultant" retained by the wife to assess the husband's earning capacity, was permitted to testify as an expert witness and his report was entered into evidence at the trial.

         The judge issued the remand judgment, dated January 12, 2018, granting sole legal custody to the wife and ordering the husband to pay unallocated support of $10, 000 per month (retroactive to January 1, 2014). The judge found that the husband had not exercised reasonable efforts to obtain appropriate employment and attributed to him an annual income of $440, 400 for 2014 to 2016, and $475, 000 for 2017. The present appeal by the husband followed.

         Discussion.

         The husband challenges the amount of attributed income, the amount of unallocated support, and the modification of legal custody. We address his arguments in turn.

         1. Attribution of income.

         The husband contends that the amount of income attributed to him, in excess of $400, 000 per year, rests on ...


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