Divorce
The Parties in this case were married in 2000 and had two children during their marriage. Throughout the marriage, Husband was the primary financial contributor while Wife stopped working from 2005 to 2016, after the birth of their second child. Prior to that time, Wife made about $300,000.00 per year at the beginning of the Parties marriage. When Wife returned to the work force after the Parties separation, she made about $112,000.00 per year. At the time of the Parties divorce, Husband made approximately $320,000.00 per year.
The Parties were divorced in 2017 and their judgment stated in relevant part that (1) Wife would have primary custody of the minor children with Husband having one-third parenting time, (2) Husband would pay Wife $600.00 per week in child support, (3) Husband would pay Wife $400.00 per week in general term alimony, and (4) Wife would receive additional alimony of $18,000.00 per year for Husband’s year-end bonus. The agreement stated that alimony would be tax deductible by Husband and treated as taxable income for Wife. The judgment also specified that any future modification filed by the Parties would not consider Husband’s income derived from his investments or inheritances obtained by Husband after the divorce for support calculations.
Modification
In 2020, Husband filed a Complaint for Modification regarding parenting time. Wife answered and counterclaimed seeking an increase in child support and alimony and cited an increase in Husband’s income and the fact that Husband was exercising significantly less than one-third parenting time as a basis for the increase. It turned out, that since the Parties divorce, Husband’s income did increase significantly due to a gifted LLC from his father and from acquiring a new income producing property, with his income increasing from $320,000.00 in 2018 to over 1 million dollars in 2021. Further, Husband had not exercised parenting time in over a year.
After a two-day trial in 2022, the Court issued a judgment and cited a three-step Cavanaugh analysis for the basis in increasing Husband’s alimony and child support obligation. The Court increased Husband’s alimony obligation to $1,100 per week and his child support obligation to $1,400.00 per week. The Court further ordered retroactive support of $180,000.00 from the date that Husband received Wife’s Answer and Counterclaim and terminated the $18,000.00 annual additional alimony paid to Wife per the Parties original agreement. Husband then appealed this judgment.
Cavanaugh Analysis
Before diving into the appeal in this matter, it is important to understand what a Cavanaugh analysis is. In 2022, the Massachusetts Supreme Judicial Court issued a ruling on child support and alimony orders. Essentially, the Court issued a three-part test that the Court’s and Parties to a support case must follow when calculating support orders that involve both child support and alimony. Cavanaugh v. Cavanaugh, 490 Mass. 398, 410 (2022).
This three-step test is as follows:
- Calculate alimony first per the factors enumerated in G.L. c. 208, § 53(a). The amount of alimony should be determined by referring to the recipient spouse’s need for support which will allow them to enjoy the lifestyle maintained during the Parties marriage. After such alimony calculation is completed, then child support must be calculated using the Parties’ post-alimony incomes.
- Calculate child support first and then calculate alimony. In calculating alimony, consider the factors enumerated in G.L. c. 208, § 53(a).
- Compare the results of both Step 1 and Step 2, considering both the base awards and tax consequences that would arise out of both calculations. An order should then be created, which would be the most equitable for the family, considering the mandatory factors in G.L. c. 208, § 53(a), and public policy factors that call for children to be supported as equally as possible by their parents’ resources.
In Smith, the Court used the three-part Cavanaugh analysis in order to increase Husband’s support obligation. This then became the basis for Husband’s appeal as detailed below.
For a further review of the Cavanaugh case, see our blog post here: https://heralawgroup.com/sjc-throws-an-alimony-and-child-support-curve-ball-with-recent-cavanagh-ruling/
Basis for Appeal
Husband had three grounds for appealing the judgment:
Factors under G.L. c. 208, § 53(a) and Consideration of Tax Consequences
- (a) The Probate and Family Court failed to explain the basis for alimony figures used in Step 1 of the Cavanaugh
Husband alleged that the Court failed to properly explain its basis for increasing the alimony figures per the factors G.L. c. 208, § 53(a). Husband further alleged that the Court was required to make specific alimony calculations for the relevant years in the matter (2020, 2021, and 2022) and instead picked random numbers that, “have no explanation nor support in the record and are clearly erroneous”. Smith v. Smith, 2025 23-P-830, at 10 (Mass. App. Ct. May 6, 2025). Lastly Husband alleged that the significant increase in his alimony obligation was not proportionate to Wife’s modest increase in expenses since the divorce.
(b) The Probate and Family Court failed to consider the tax consequences when determining the support order in Step 3 of the Cavanaugh analysis.
Husband alleged that the Court erred in failing to consider the tax consequences for the Parties when determining the equitable order under Step 3 of the Cavanaugh analysis.
Modification of Additional Alimony Payments
- The Probate and Family Court inappropriately modified alimony by changing the structure of the Parties agreement for payment of Husband’s bonus income.
Husband asserted that the Court should not have modified the original agreement with regards to Husband’s annual bonus for Wife to receive $18,000.00 annually as additionally alimony. Husband cited to cases like Katzman which states, “A judge who modifies a divorce judgment… does not write on a tabula rasa. To the extent possible, and consistent with common sense and justice, the modified judgment should take into account the earlier, expressed desires of the parties”. Katzman v. Healy, 77 Mass. App. Ct. 589, 598 (2010). Additionally, Husband further argued that both the fluctuating nature of his bonus and the increase in his annual bonus received post-divorce did not warrant a change of the Parties original agreement pertaining to the additional alimony.
Deviation of Child Support
- The Probate and Family Court erred in increasing child support above the minimum guidelines amount without making adequate findings.
Husband lastly alleged that the Court abused its discretion by increasing child support above the minimum presumptive order generated by the Child Support Guidelines without making sufficient findings demonstrating that the increase was warranted by the children’s needs.
Appeal’s Court Ruling
The Appeals Court affirmed the Probate and Family Court’s Judgment and did not find that the Court abused their discretion in making the support Judgments for the Modification. The Appeals Court justified their findings as follows per Husband’s arguments detailed above:
Factors under G.L. c. 208, § 53(a) and Consideration of Tax Consequences
- (a) The Appeals Court found that the Judge adequately cited to factors in G.L. c. 208, § 53(a) in her post-trial findings including but not limited to, finding that Wife’s income had only increased modestly since the divorce but Husband’s had increased significantly, that Wife’s weekly expenses were over her net weekly income despite a lifestyle change post-divorce, and that Husband had the ability to pay increased support which would allow Wife to maintain the lifestyle she enjoyed during the Parties marriage. Additionally, the Appeals Court stated that judge’s have broad discretion under the Alimony Reform Act and subject to limits set forth in G.L. c. 208, § 53 (b) (that alimony shouldn’t exceed thirty to thirty-five percent of difference in Parties income or should generally not exceed the recipient’s need) and found that the Judge properly calculated alimony as it did not exceed the Wife’s need or thirty to thirty-five percent of the difference in the Parties incomes for any year. Lastly, the Appeals Court stated that the increase in Husband’s income was warranted given that the Judge considered (1) Husband’s lifestyle elevated after the marriage and Wife’s declined, hence leading to a disparagement in her current lifestyle and the lifestyle she enjoyed during the marriage and (2) that the substantial increase in Husband’s lifestyle allowed him to pay increased alimony so that Wife could enjoy the lifestyle enjoyed during the marriage.
(b) The Appeals Court found that the burden was on Husband to present, “reasonably instructive evidence” of the potential tax consequences or to file a post judgment motion explaining the tax consequences. Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 866 (1989). The Appeals Court further made clear that Probate and Family Court judges are by no means tax experts and are not expected to come up with the tax consequences on their own. Further, the Appeals Court clarified that even though Cavanaugh says that a Judge must consider tax consequences in Step 3, it does change the requirements of Fechtor for the Parties to present reasonably instructive evidence of such tax consequences, something that Husband failed to do here.
Modification of Additional Alimony Payments
- The Appeals Court further found that the Judge properly changed the structure of Husband’s bonus income. The Appeals Court cited the fact that the Judge, in her findings found that Husband’s income had increased three times his bonus income reported at the time of the divorce and therefore, it was reasonable that the Judge could conclude he could pay his bonus income on a weekly basis, even though he only receives it annually. Although the Appeals Court states that the Judge’s findings could have been clearer, they cite that (1) the Judge properly considered the Parties intentions in their original agreement and (2) there was a reasonable basis consistent with G. L. c. 208 for departing from those intentions. The Judge therefore did not abuse her discretion in changing the structure of the bonus payments.
Deviation of Child Support
- The Appeals Court cited the Child Support Guidelines which state that if the Parties combined gross income exceeds $400,000, then the child support guidelines should be applied to the first $400,000 in income and that shall be the minimum presumptive order. Child Support Guidelines § II(C)(2) (Aug. 2021) Any further support obligation for the income over the $400,000.00 is at the judge’s discretion and the judge does not need to follow the Guidelines or provide specific findings as to the number the additional support. Additionally, when a party provides substantially less than 1/3 of parenting time or if the minimum presumptive order would provide for a gross disparity in the Parties standards of living, the Guidelines call for an upward deviation that are made with specific findings. Id. at § IV(A).
Here, the Judge properly exercised her discretion under the Guidelines in finding an upward deviation of child support from the minimum presumptive order due to the fact that the Parties combined income exceeded $400,000.00. Even though this fact alone was enough to quash Husband’s appeal argument, the Appeals Court went on to further state that the Judge identified two grounds in her findings further supporting a deviation upwards based on the Guidelines. Those grounds were that (1) Husband had spent no time with the children in over a year, hence spending substantially more than 2/3 time in Wife’s care and (2) that an upward deviation was necessary to avoid a substantial deviation in the Parties standards of living. Therefore, the Appeals Court found that the Judge did not err in increasing the child support above the presumptive obligation.
Conclusion
Smith is a clear indicator that while Cavanaugh established a three-step rule that Court’s must follow in determining support obligations that involve both child support and alimony, judge’s still have broad discretion when making those findings. Further, Smith serves as a clear warning that if a party is concerned of tax consequences in an alimony decision, the onus is on the Parties, not the Court, to provide reasonably instructive evidence of the tax consequences in making an alimony determination.
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If you are seeking to obtain a divorce and are curious about your right to child support and/or alimony, please contact the attorneys at Hera Law Group, (978) 637-2048. Our attorneys are experienced in both child support and alimony matters and will help walk you through the process every step of the way to secure your right to support.
