Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, October 14, 2005

Case Law Development: Court may not Impute Income to Starving Artist Wife upon Husband's Motion to Modify Maintenance

The Massachusetts Court of Appeals reversed a trial judge's reduction of alimony in a case involving an aspiring artist mother.  The couple in this case divorced when they were in their late 40s, with a 13-year-old son and twin 6 year olds sons. Wife stayed home with the children and painted.  The trial court suggested that Wife would have to think about a different career in the future if her painting didn't pan out.  The trial court granted alimony and suggested that it was likely the Husband would have to continue to pay that alimony until retirement.

Three years later, with wife's painting career improving but still not generating a positive cash flow, Husband moved to reduce alimony, claiming that wife was voluntarily unemployed and should be credited with larger earning capacity and that she had reduced expenses.  Husband  also argued that he had fewer assets because he had transferred income-producing assets to his mother.  Vocational experts for both parties testified regarding Wife's ability to earn more income than her painting was providing.

Trial court granted the reduction in alimony.

The Massachusetts Court of Appeals reversed.  The opinion contains plenty of scoldings:

First, the court of appeals noted that the trial court properly scolded the Husband for trying to argue changed circumstances in his reduced income, because his employment income had actually increased since the divorce.  Moreover, the trial court noted that it would not consider Husband's argument that he had reduced income from assets because he had transferred those assets since he had transferred the assets to his mother with the clear expectation that she would return them at a future date and he did not declare any income from those interests as of the time of the divorce. The trial court noted that Husband was "asking the Court to reduce his present support obligations in order to allow his future assets to be protected, preserved and enhanced -- all at the expense of the [wife] and the parties' three unemancipated children, whom he is obligated to support."

The appellate court had some scolding of its own to do.  In reversing the trial court's decision, the court found that there was no change in circumstance from the original decree.  While conceding that imputing income may be appropriate in modification in certain circumstances where there is evidence that  an obligee is deliberately choosing to deflate their income, the court noted that those were not the circumstances in this case.  Rather, the court concluded, the trial court's decision was based on the "judge's personal disapproval" of the wife's "avocation."  The appellate court noted that  at one point the judge had commented, "I'd love to be a professional golfer." He told the wife, "You may be a fine artist, but the term . . . 'starving artist' exists for a reason. . . . You can't keep losing money, ma'am. If you want to, that's your business, but he's not going to subsidize [your avocation]."  The court emphasized the caution "against relying unduly on the income-earning potential of a wife and mother who has been out of the regular job market for decades.... Such caution is appropriate in this case, where the wife has dedicated herself and expressed commitment to her vocation as an artist, whether or not she could earn more money in a clerical position."

Kelley v. Kelley, 2005 Mass. App. LEXIS 951 (October 11, 2005)
Massachusetts opinions are available online at (last visited October 12, 2005 bgf)

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