THEODORE W. MACRI, JR.
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.
E. Stenger for the husband.
Rachael M. Soun (David E. Cherny also present) for the wife.
Present: Green, C.J., Agnes, & Desmond, JJ.
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.
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.
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.
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.
husband challenges the amount of attributed income, the
amount of unallocated support, and the modification of legal
custody. We address his arguments in turn.
Attribution of income.
husband contends that the amount of income attributed to him,
in excess of $400, 000 per year, rests on ...