The Massachusetts Appeals Court recently addressed this issue in Miles v. Beusch, Docket 17-P-1511 (Mass. App. Ct. January 24, 2019) (Memorandum and Order Pursuant to Rule 1:28). In that case, the former Husband appealed the trial court’s decision to attribute income to him for the purpose of calculating child support.
In Massachusetts, the amount of child support a judge orders is generally based on the parents’ income. However, the Child Support Guidelines provide that if the court determines either parent is earning less than he or she could through reasonable effort, the court should consider that parent’s potential earning capacity rather than his or her actual income when making the child support order. This is known as attributing income. If a courtattributes incometo a parent,then the amount of child support is based on the attributed income, even if the parent’s actual income that is much less or nothing at all.
For three years, the Husband in Miles v. Beusch made around $600,000 annually. He was then unemployed for twenty-one months. Following another job and subsequent layoff, the Husband accepted a senior equity analyst position, but at much lower salary. Shortly before the end of trial, the Husband was laid off from that position as well.
The trial judge found that the Husband had not made reasonable efforts to earn an income commensurate with his education, skills, employment history and prior earning level. The judge determined that the Husband was capable of earning $400,000 annually. However, the judge also considered the Husband’s recent layoff and his prolonged period of unemployment during the marriage. Ultimately, the judge attributed an annual income of $250,000 to the Husband. The Husband appealed.
In its decision, the Appeals Court stated that before a judge attributes incometo a party, the judge must consider all relevant factors, including the education, training, employment history of the party, and, importantly, the availability of the employment at the attributed income level.
At trial, the Wife’s vocational expert testified that the husband was a “stellar candidate” for a director-level equity analyst position with a yearly salary range between $400,000 and $750,000. However, the expert also testified that type of upper-level position was somewhat rare, that there were no open positions at the time of the trial, and that he was unable to predict when such a position may become open. There was no evidence of appropriate positions available with annual salaries at the attributed income of $250,000, or that the Husband had a meaningful opportunity to conduct a job search before the close of evidence.
The Appeals Court found that the evidence at trial did not adequately demonstrate that there was available employment at the attributed income level and remanded the case to the lower court for further findings as to whether the Husband exercised reasonable efforts since his layoff to secure employment commensurate with his education, training, and work history.