Vedensky v. Vedensky, 86 Mass. App. Ct. 768 (2014)
In a case of first impression, Atwood & Cherny (Mary Beth L. Sweeney, Esq. and Catharine V. Blake, Esq.) represented the wife in defense of a complaint for modification in which the husband was seeking an award of alimony more than four years after the parties were divorce. The wife was a doctor who had a primary full-time job and also worked per diem moonlighting at a hospital post-divorce. In evaluating her ability to pay alimony, the trial court included the income from her second job in her total income available for alimony purposes, despite the presumption of G.L. c. 208, § 54(b) that provides that income from a second job not be considered when a payor also works a full-time job. The trial court also found that the wife could earn more income with additional moonlighting and awarded the husband two years of rehabilitative alimony. Atwood & Cherny were successful on appeal in having the Appeals Court vacate the alimony award on the basis that the trial court did not find any facts that amounted to a rebuttable presumption against include the wife’s income from her second job. The wife was working a second job while being the primary caretaker of the parties’ children and receiving no financial contribution from the husband (other than Social Security payments on his behalf). The Appeals Court concluded that “a party who works at a full-time or full-time equivalent job may not be found to be ‘unemployed’ or ‘underemployed’ based on the level of compensation received from a second job obtained ‘after entry of the initial order’…’”
In a case of first impression, Atwood & Cherny (Mary Beth L. Sweeney, Esq. and Catharine V. Blake, Esq.) represented the wife in defense of a complaint for modification in which the husband was seeking an award of alimony more than four years after the parties were divorce. The wife was a doctor who had a primary full-time job and also worked per diem moonlighting at a hospital post-divorce. In evaluating her ability to pay alimony, the trial court included the income from her second job in her total income available for alimony purposes, despite the presumption of G.L. c. 208, § 54(b) that provides that income from a second job not be considered when a payor also works a full-time job. The trial court also found that the wife could earn more income with additional moonlighting and awarded the husband two years of rehabilitative alimony. Atwood & Cherny were successful on appeal in having the Appeals Court vacate the alimony award on the basis that the trial court did not find any facts that amounted to a rebuttable presumption against include the wife’s income from her second job. The wife was working a second job while being the primary caretaker of the parties’ children and receiving no financial contribution from the husband (other than Social Security payments on his behalf). The Appeals Court concluded that “a party who works at a full-time or full-time equivalent job may not be found to be ‘unemployed’ or ‘underemployed’ based on the level of compensation received from a second job obtained ‘after entry of the initial order’…’”