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Cooper v. Cooper6/25/1997
Divorce and Separation, Alimony, Separation agreement. Contempt.
GREENBERG, J. These are appeals from two judgments of contempt entered in a Probate Court, for failure of the husband, J. Phillip (Phillip), formerly married to Ellen, to comply with court orders for alimony. A Probate Court Judge issued the first ruling on May 31, 1995, following an evidentiary hearing. Determining that Phillip was in contempt of a monetary order, she fixed the amount of the arrears and ordered him to pay within 90 days Phillip appealed from the order, and without obtaining a stay, he failed to pay the amount due.
Ellen filed a new complaint on August 31, 1995. After hearing arguments of counsel, on September 6, 1995, the same Judge again found Phillip in contempt and sentenced him to jail for 30 days until he purged himself by payment of one-half of the newly accrued arrears. After one week in custody, Phillip paid $12,190.42 and was released on September 13, 1995. He appeals from both judgments which hold him in contempt for nonpayment of alimony arrears that aggregate $51,790. The cases have been consolidated for purposes of this appeal.
The circumstances are these. When Phillip and Ellen married in 1967, she worked as a homemaker as he was beginning his career. From the start, she was the primary caretaker of their now adult daughter and twin sons. She cared for Phillip and supported his business endeavors. Eventually, Phillip earned a doctorate from the Massachusetts Institute of Technology and became executive vice-president of Standard & Poor Corporation, a national financial service and bond rating firm. After Ellen became pregnant with their first child, she did not work outside of the home. During their marriage, the Coopers maintained a prosperous lifestyle.
Between 1988 and 1993, Phillip held successive jobs as chief executive officer of two corporations. By the time he left his last post, before starting his own business, his annual salary had reached $169,000. He resigned from Standard and Poor in 1988, about one year after the breakup of his marriage. By that time, he had married Miriam Flicop Cooper (Flicop). She is senior vice president of Client Services Corporation and earns over $200,000 annually. They have one child together.
Phillip challenges the contempt orders as improperly resting on an exaggerated estimate of his ability to pay. He asserts that the Judge erred in: (1) considering his potential earning capacity; (2) failing to consider liens on his assets; and (3) considering the assets and income of his current spouse. In addition, Phillip contends that the Judge erroneously concluded that the parties' separation agreement bars him from seeking reduced alimony payments. We affirm.
1. The husband's potential income. A review of the Judge's findings reveals that she considered Phillip's potential earning capacity in evaluating his ability to purge himself of contempt. A Judge may consider future earnings as long as, with reasonable effort, the responsible spouse could generate an income greater than that being earned at the time of the contempt hearing. Schuler v. Schuler, 382 Mass. 366, 373-374, 416 N.E.2d 197 (1981). Ability to pay alimony includes all forms of income and capital assets a spouse possesses. Krokyn v. Krokyn, 378 Mass. 206, 210, 390 N.E.2d 733 (1979). Phillip complains that the Judge overestimated how much income he could generate from a business he started in November, 1993, when he left his last salaried position. Phillip incorporated his new venture, Road Runner Medical, Inc., in 1994. His present wife, Flicop, is the sole shareholder.
Having heard Phillip's testimony explaining that he spen
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