Davae v. Davae

100 Mass.App.Ct. 54

174 N.E.3d 1219

Shashi K. DAVAE

v.Ketan C. DAVAE.

No. 20-P-386

Appeals Court of Massachusetts, Bristol.

Argued April 14, 2021.

Decided July 21, 2021.

Richard J. Dyer, for the wife.

Michael S. Rabieh, Boston, for the husband.

Present: Milkey, Hand, & Grant, JJ.

HAND, J.

The parties’ primary dispute at their divorce trial was how to calculate the husband's earning capacity as a radiologist. Aided by an expert witness, the wife argued that at the time of trial, the husband could earn far more income practicing in a traditional hospital- or clinic-based setting than he had done during the last several years of their twenty-year marriage, when he was self-employed and working remotely from home. The judge rejected the opinion of the wife's expert and instead calculated the husband's earning capacity himself, taking into account the practice model the husband had developed and maintained during the marriage. We discern no error in the approach taken by the judge, although certain errors in the judge's specific calculations warrant a limited remand. We otherwise affirm the judgment.¹

Background. The parties were married in 1993 and have two children together; at the time of trial, the parties’ older child was a twenty year old college junior and their younger child, who was fourteen, was in the ninth grade at a public school. The children lived with the wife in a rented apartment, and the husband continued to reside in the marital home.

The husband, who was fifty-one years old and in "relatively" good health, was a licensed physician, board-certified in the field of diagnostic radiology. From 2001 to 2006, following the completion of his residency training, the husband worked in clinical positions at healthcare centers and clinics in several States. In 2004, while living in Wisconsin and practicing at a medical center, the husband started his teleradiology business, Darkside Imaging, PC, (Darkside) which he operated from his home. Teleradiology involves the remote review and interpretation of radiologic images. Remote reading of images involves the same basic procedure whether performed in a traditional setting or remotely: an image is taken, it is forwarded by computer to the radiologist, and the radiologist interprets and submits a report back to the requesting person or entity.² From 2004 to 2006, the husband worked part time at Darkside while also working full time for a traditional employer;³ in 2007, the husband left his clinical job and began working full time at Darkside as a teleradiologist. The judge found that the husband was "highly qualified to read, interpret, and report on radiological images, including but not limited to x-rays, ultrasound images, CT scans, and PET scans," and, "based on his skill, training, and experience, [was] highly employable as a tele-radiologist."

The judge found that when the husband first formed Darkside, he contracted with and received reimbursements from three contractors, earning approximately $350,000 per year. From 2007 forward, however, the husband's income significantly decreased; at the time of trial, the husband's reported income was $3,147.52 per week (approximately $163,000 per year). Having made findings as to the husband's annual earnings for the years 2007, and 2009 through 2016,⁴ the judge found that "since at least 2012," the "[h]usband ha[d] not been earning a salary commensurate with his earning capacity."

Although each party presented expert testimony about the husband's earning capacity, the judge rejected both experts’ opinions. The judge rejected the opinion of the husband's expert on the grounds that it relied on the average salaries for all physicians and surgeons in Massachusetts and rejected the wife's expert's opinion on the grounds that it failed to take into account the husband's lack of recent hospital-based practice. Having done so, the judge determined that, because the husband's "earnings [were] so directly connected and intertwined with his individual performance, and because he [was] self-employed, ... the best indicator of [the husband's] earning potential [was his] own earnings in prior years, rather than the average salaries of other, similarly situated professionals." The judge found the husband's earning capacity to be $210,606, which he arrived at by averaging the husband's annual earnings for the period 2007 through 2016, excluding as outliers the highest- and lowest-earning years (2007 and 2014), and excluding 2008 for the reason we have noted, supra, at note 4.

Discussion. The wife's primary challenge on appeal is to the judge's determination of the husband's earning capacity; she also claims error in the judge's allocation to her of one-third of the husband's tax liability and in the judge's reference to the "UMASS Standard," see part 3, infra, in imposing on each party a portion of their eldest child's college tuition obligations. We address these points in turn.⁵

1. Husband's earning capacity. A judge may, under both the Alimony Reform Act (act), G. L. c. 208, §§ 48 - 55, and the Massachusetts Child Support Guidelines (Guidelines), attribute income to a party who is both underemployed and capable of earning more with "reasonable effort." Macri v. Macri, 96 Mass. App. Ct. 362, 364, 136 N.E.3d 347 (2019), quoting Emery v. Sturtevant, 91 Mass. App. Ct. 502, 509 & n.10, 76 N.E.3d 1039 (2017). See Guidelines § I.E.2 (2017).⁶ We review the judge's decision to consider attributed income, rather than actual income, for an abuse of discretion. See Schuler v. Schuler, 382 Mass. 366, 374, 416 N.E.2d 197 (1981). Where attribution is appropriate, "the [judge] should consider potential earning capacity rather than actual earnings in making its child support order." Guidelines § I.E.1-2 (2017). In doing so, the judge must consider a nonexclusive list of factors, "to the extent known and presented to the [judge]," focused on the particular circumstances of the parent at issue. See Guidelines § I.E.3 (2017).⁷ We review the judge's factual determinations only for clear error. See Canning v. Juskalian, 33 Mass. App. Ct. 202, 210-211, 597 N.E.2d 1074 (1992).

We begin by considering the wife's challenge to the judge's rejection of the opinion of her expert witness, Dr. Peter Cohen. Dr. Cohen's opinion of the husband's earning capacity was based on his determination of the average earnings of "radiologists of similar qualifications, education, and experience in the area." In rejecting that opinion, the judge found that "Dr. Cohen's estimates did not account for the fact that [the] [h]usband ha[d] not worked in a hospital setting in nearly fifteen ... years, and thus likely would not be able to readily obtain a job paying a commensurate salary to other professionals with different, hospital-centric work histories." We discern no error.

First, and contrary to the wife's argument, there was evidence at trial, through the husband's expert witness, Dr. Christopher Wood, that a ten-year absence from hospital practice would be a disadvantage to a radiologist seeking employment in a hospital setting. Second, even had that not been the case, we read the judge's findings as permissibly rejecting Dr. Cohen's opinion because Dr. Cohen did not base his estimate on the average earnings of a radiologist with a practice comparable to that of the husband. As the husband transitioned from traditional radiology to teleradiology years before the parties separated, his career change cannot reasonably be viewed as an attempt to manipulate his income to reduce or avoid his support obligations. Because the question presented to the judge was whether the husband could, with reasonable effort, earn more as a teleradiologist, the judge was within his discretion in concluding that the husband's earning capacity was appropriately determined within the framework of the husband's existing practice model, rather than the model on which Dr. Cohen's opinion was grounded.⁸ See Macri, 96 Mass. App. Ct. at 367, 136 N.E.3d 347 (in considering income attribution, "we do not suggest here that a party is foreclosed from making a good faith, voluntary career change").

We next turn to the judge's calculation of the income attributable to the husband. Having rejected the opinions of both parties’ experts, the judge permissibly considered other available evidence, namely, the husband's earning history. See Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863, 534 N.E.2d 1 (1989) (faced with conflicting expert opinion on value, "the judge may reject expert opinion altogether and arrive at a valuation on other evidence"). To the extent that the judge relied on earnings that he found represented the husband's "reasonable efforts" to earn to capacity, we discern no error in the judge's use of an average of the husband's past earnings as a basis for determining the husband's present earning capacity. See Whelan v. Whelan, 74 Mass. App. Ct. 616, 623, 908 N.E.2d 858 (2009), quoting LaValley v. LaValley, 25 Mass. App. Ct. 918, 920, 516 N.E.2d 182 (1987) (averaging method appropriate where payor's income "might ‘fluctuate widely’ " and average "was ‘a reasonable indicator of [the husband's] long-term average income’ ").

We likewise conclude that the judge acted within his discretion in discounting the highest and lowest earning years from the calculation, based on his determination that they were not representative of what the husband could earn, with reasonable efforts, as a teleradiologist.⁹

The wife's challenge to the judge's reliance on the husband's earnings from 2012 through 2016, however, fares better. The judge's explicit finding "that [the] [h]usband ha[d] not been earning a salary commensurate with his earning capacity since at least 2012" incorporated an implicit finding that the husband had not been using reasonable efforts to earn to capacity as a teleradiologist for 2012 through 2016 (the last year for which the judge heard evidence).¹⁰ Despite this finding, however, the judge...