Vedensky v. Vedensky ( 2014 )

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13-P-1392 Appeals Court
DMITRY VEDENSKY vs. VERONICA VEDENSKY.
No. 13-P-1392.
Middlesex. September 8, 2014. - December 30, 2014.
Present: Trainor, Rubin, & Sullivan, JJ.
Divorce and Separation, Alimony, Modification of judgment.
Evidence, Expert opinion, Earning capacity.
Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on December 19, 2006.
A complaint for modification, filed on June 10, 2011, was
heard by Spencer M. Kagan, J., and a motion to amend the
judgment was considered by him.
Mary Beth L. Sweeney (Catharine V. Blake with her) for the
wife.
Patricia A. DeJuneas for the husband.
SULLIVAN, J. Veronica Vedensky, the former wife, appeals
from an amended judgment of modification of the Probate and
Family Court, which, among other things, orders her to pay to
Dmitry Vedensky, the former husband, rehabilitative alimony in
2
the amount of $635 per week for 104 weeks.1 See G. L. c. 208,
§§ 37, 53.2 Veronica contends that the complaint for
modification of alimony was barred by a previous complaint for
modification of child support, and that the award of
rehabilitative alimony was improper. We conclude that the
complaint for modification of alimony was not barred by the
adjudication of the complaint for modification of child support.
We also conclude that the judge did not abuse his discretion in
awarding rehabilitative alimony, but erred in his consideration
of the wife's income from a second job which commenced after the
entry of an "initial order." G. L. c. 208, § 54(b)(2), inserted
by St. 2011, c. 124, § 3. Accordingly, we vacate so much of the
amended judgment of modification as applies to alimony and
alimony-related conditions, and remand for further proceedings.
In all other respects, the amended judgment of modification is
affirmed.
1
A judgment of modification was entered on May 16, 2013.
On July 12, 2013, the judge entered an amended judgment of
modification, in which he amended certain portions of the May
16, 2013, judgment, and included the following proviso: "Any
and all provisions of the Judgment of Modification dated May 16,
2013 not specifically addressed above shall remain in full force
and effect as written." Our references to the amended judgment
of modification include both the May 16, 2013, judgment and the
July 12, 2013, amended judgment.
2
This matter was tried in 2013. Dmitry's request for
alimony is governed by the Alimony Reform Act of 2011, St. 2011,
c. 124. See G. L. c. 208, §§ 48-55.
3
1. Background. We summarize the history of the case and
the facts found by the judge, reserving certain details for
discussion in connection with the specific issues raised. The
judgment of divorce nisi entered on March 14, 2007,
incorporating a separation agreement signed by the parties on
November 2, 2006. The separation agreement, executed when both
parties were fully employed, waived past and present alimony,
but contained a reservation of rights to future alimony.
Veronica was also designated primary physical custodian and
Dmitry was ordered to pay child support in the amount of $230
per week.
The parties enjoyed an upper middle class station in life
during the marriage. Dmitry is highly educated, holding a
doctorate in applied mathematics, and a "Masters of Science
degree in finance." Before the divorce, Dmitry was employed in
the financial, engineering, and technology industries, earning a
six-figure salary. He began, however, to experience
difficulties at work, took disability leave, and returned to a
different job at a lower rate of pay. Two years after the
divorce, in April of 2009, Dmitry again took short-term
disability leave, and did not return to full-time work. In
November of the same year he began to receive Social Security
disability income (SSDI) benefits for a psychiatric disability.
4
On December 7, 2009, Dmitry filed a complaint for
modification of the 2007 judgment. He requested a reduction of
his child support obligation, citing his job loss, disability,
and the availability of SSDI dependent benefits. In 2010, a
judgment of modification entered relieving Dmitry of his child
support obligation pursuant to an agreement between the parties
in which Veronica received SSDI dependent benefits on behalf of
the parties' minor child.
Dmitry's unemployment persisted. Dmitry filed the present
complaint for modification requesting alimony on June 10, 2011.
Veronica moved to dismiss, claiming that Dmitry failed to
demonstrate that a material change in circumstances had occurred
since the earlier judgment modifying his child support
obligation. The judge deferred ruling on the motion to dismiss,
and set the complaint for trial. A five-day trial was held in
2013 at which Dmitry's treating psychiatrist testified, as well
as Veronica's vocational and psychiatric experts. The judge
ordered that Veronica pay $635 per week in rehabilitative
alimony to Dmitry for a period of 104 weeks.
By the time of trial Dmitry had begun part-time work as a
teacher at a school of mathematics, but the hours he was
allotted by the school were inconsistent. He earned
approximately $650 per month, and continued to receive SSDI
benefits. At the time of the divorce, Veronica, a physician,
5
was employed earning $122,720 annually. At the start of the
trial she was employed at a local medical center, where, with
overtime and bonus, she earned $188,599.32 in Internal Revenue
Service W-2 form wages (W-2 wages), of which approximately
$6,800 was bonus income.3 In 2011, however, no bonuses were
given, and in March of 2012, she took a second job at a
rehabilitation hospital (second job), working weekends on a per
diem basis.4 The judge found that she did so in order to meet
her expenses and the cost of private school and college for the
two children of the marriage.5 During the trial Veronica took a
new job at a Boston hospital, where she earned $4,115 per week,
or $214,000 annually. She also continued to work at the second
job on a per diem basis.
3
Veronica grossed $204,000, but W-2 wages were reduced by
retirement plan deductions.
4
The judge found that Veronica's earnings from the second
job totaled $12,950 through September 30, 2012. The judge
further found that, working two weekend days per month, Veronica
could earn an average of $2,240 per month ($26,880 per year)
going forward.
5
Under the terms of the separation agreement, both Dmitry
and Veronica were responsible for the expenses of "college or
other institutions" for the two children. When Dmitry lost his
income, Veronica paid the children's tuition for private school
and college. At trial, the judge found that Veronica alone was
responsible for the private secondary school tuition, since the
parties had not jointly agreed to Veronica's choice of school,
and the parties' separation agreement did not obligate Dmitry to
agree to a private secondary school education. The judge also
relieved Dmitry of his obligation to pay the college tuition of
both children. Neither of these rulings is challenged on
appeal.
6
The judge concluded that Dmitry had a future earning
capacity of $95,000 per year, but that he was presently unable
to work at his former level due to mental illness. The judge
found that Dmitry's mental illness "manifests itself in a way
that compromises his ability to earn income," and that he was in
need of intensive therapy and support while he engaged in that
therapy. For this reason, the judge ordered a period of
rehabilitative alimony. The judge recognized that the amount
ordered exceeded Veronica's income (net of expenses) from her
new job and her average earnings in the second job. He found,
however, that Veronica "could work more than two weekend days
per month if she chose to," and therefore had the "ability to
increase her income on a temporary basis if that is necessary to
comply with the Court's [rehabilitative] alimony award." See
note 4, supra.
This appeal followed, challenging both the authority of the
judge to hear this complaint for modification and the award
itself. We consider first the judge's authority to hear the
complaint for modification. We then consider the judge's
determination of Dmitry's need and Veronica's ability to pay.
See Pierce v. Pierce, 455 Mass. 286, 295-296 (2009).
2. Complaint for modification of alimony. Veronica claims
that the judge was precluded from hearing the merits of Dmitry's
complaint for modification of alimony because Dmitry did not
7
demonstrate the existence of a material change of circumstances
warranting a modification. See Buckley v. Buckley, 42 Mass.
App. Ct. 716, 719-722 (1997). "To be successful in an action to
modify a judgment for alimony . . . the petitioner must
demonstrate a material change of circumstances since the entry
of the earlier judgment." Schuler v. Schuler, 382 Mass. 366,
368 (1981), overruled in part on other grounds by Keller v.
O'Brien, 425 Mass. 774, 777 n.7 (1997). See Hassey v. Hassey,
85 Mass. App. Ct. 518, 527-528 (2014).
Veronica argues that the "earlier judgment" by which the
occurrence of a change in circumstances should be assessed is
the judgment on Dmitry's complaint to modify child support, as
it was based on the same circumstances, that is, Dmitry's
disability and unemployment. However, the "earlier judgment" to
which we look is the judgment of divorce nisi which addressed
the issue of alimony. See Pierce v. Pierce, supra at 295 n.9;
Buckley v. Buckley, supra at 720-722.
The fact that there was a previous modification proceeding
concerning child support does not alter this result. In
discussing the initial award of alimony under G. L. c. 208,
§ 34, the Supreme Judicial Court has noted, "[w]e do not choose
to establish an incentive to a husband or a wife to request
alimony during divorce proceedings simply to protect himself or
herself should experience later persuade him or her . . . that
8
alimony is appropriate." Cherrington v. Cherrington, 404 Mass.
267, 270 n.6 (1989). Similarly, where the question of alimony
has been reserved in the earlier divorce judgment, the parties
are not required to pair every complaint for modification of
child support with an alimony request.6 The judge did not err in
hearing Dmitry's complaint for modification seeking alimony.
3. Dmitry's need. Rehabilitative alimony is defined as
"the periodic payment of support to a recipient spouse who is
expected to become economically self-sufficient by a predicted
time." G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3.
"The purpose of an award of rehabilitative alimony is 'to
protect, for a limited time, a spouse whose earning capacity has
suffered (or become nonexistent) while that spouse prepares to
reenter the work force.'" Zaleski v. Zaleski, 469 Mass. 230,
240 (2014), quoting from Moriarty v. Stone, 41 Mass. App. Ct.
151, 158 (1996). A judge has "considerable discretion" when
awarding alimony. Hassey v. Hassey, supra at 524.
We turn to the challenges to the particulars of the alimony
award, looking first to Dmitry's need, and second, to Veronica's
ability to pay. See Pierce v. Pierce, supra. We review both
the form and amount of an award of alimony, examining "a judge's
6
We further note that if a contrary rule were adopted, it
would not necessarily favor Veronica's position. The issue of
Dmitry's disability was central to and uncontested in the
previous child support modification proceeding. Whether Dmitry
was disabled was contested in the alimony proceeding.
9
findings to determine whether the judge considered all of the
relevant factors . . . and whether the judge relied on any
irrelevant factors." Zaleski v. Zaleski, supra at 235-236.
Here, "the judge considered all of the relevant factors under
G. L. c. 208, § 53(a)." Id. at 236. The judge made
comprehensive findings of fact that support his conclusion that
"under the circumstances, rehabilitative alimony is the
appropriate type to award in this case."7 The decision to award
rehabilitative alimony was not an abuse of discretion. See
Holmes v. Holmes, 467 Mass. 653, 661 (2014); Zaleski v. Zaleski,
supra at 241, 243.
Veronica claims that the judge improperly calculated the
amount of Dmitry's need by (1) failing to adopt expert opinions
regarding Dmitry's capacity to earn an income, (2) improperly
quantifying Dmitry's earning capacity, and (3) awarding alimony
greater than Dmitry's stated needs. "A judgment will not be
disturbed on appeal unless 'plainly wrong and excessive.'"
Heins v. Ledis, 422 Mass. 477, 481 (1996), quoting from Pare v.
Pare, 409 Mass. 292, 296 (1991).
7
In addition to considering the length of the marriage, the
judge found that Dmitry has "education, skills and experience"
in a variety of professional fields. He found that Dmitry
suffers from depression, anxiety, and characteristics of
personality disorder, all conditions which dated to childhood
and interfered with his ability to work. The judge also found
that Dmitry's disability prevents him from achieving the same
income level he had at the time of the divorce, but that therapy
should allow him to become "self-supporting once again."
10
a. Expert testimony. Veronica claims that the judge erred
by failing to properly consider the "uncontroverted evidence"
presented by two experts concerning Dmitry's ability to work.
The judge's findings demonstrate that he considered the
testimony of Veronica's experts, and reconciled inconsistencies
between their reports. According to the report by the
vocational expert, Dmitry "has clearly established his
employability and an earning capacity based upon his education,
professional background, and work experience." The judge did
not fully credit this report, however, concluding "that any
analysis of [Dmitry's] present employability that does not
address [Dmitry's] current mental status is incomplete," because
Dmitry's "mental illness manifests itself in a way that
compromises his ability to earn income at that level."
The judge also partially credited the testimony of
Veronica's psychiatric expert, who stated in his report that
Dmitry experienced depression and had a personality disorder,
but "is not disabled from working." The judge credited this
expert's report and testimony insofar as he recommended "that
[Dmitry's] symptoms can be mitigated through dialectical
behavioral therapy." The judge relied on this report in
awarding alimony for the 104-week period. The judge thus
harmonized the evidence of the experts and formulated findings
that reflected his over-all assessment of their separate, but
11
related, opinions. The judge was not required to accept the
opinion of the experts, and was entitled to credit all, part, or
none of their testimony. See The Woodward School for Girls,
Inc. v. Quincy, 469 Mass. 151, 170 n.29 (2014). The judge was
in a "superior position to observe witnesses and weigh
evidence." Murphy v. Murphy, 82 Mass. App. Ct. 186, 193 (2012).
b. Earning capacity. The judge found that Dmitry had a
maximum earning capacity of $750 per month. The judge based
this finding on the Social Security Administration's (SSA)
"trial work period" regulations. According to the SSA
regulations in effect in 2013, once a person receiving SSDI
earns over $750 per month, benefits may be terminated if the SSA
determines that the person is no longer disabled, and will be
terminated if the person earns in excess of $750 per month for
nine months within a period of sixty consecutive months. See 20
C.F.R. § 404.1592 (2012). Veronica argues that earning capacity
should have been determined based on the SSA regulations
governing initial eligibility, which set a threshold beyond
which the applicant is found to be able to engage in substantial
gainful activity. See, e.g., Rams v. Chater, 989 F. Supp. 309,
315-317 (D. Mass. 1997). The SSA initial eligibility
regulations set the threshold at $1,040 per month, an amount
above which an applicant for benefits is considered to be
capable of substantial gainful activity, and therefore
12
ineligible for benefits. See 20 C.F.R. § 404.1571 (2012). The
judge was justified in relying on the disability
disqualification regulations, rather than the initial
eligibility regulations. See 20 C.F.R. § 404.1574 (2012). It
was not error for the judge to assess Dmitry's earning capacity
at a level which did not jeopardize his continuing eligibility
for SSDI benefits while undergoing therapy intended to increase
the likelihood of a return to full-time work.
c. Award beyond stated needs. The judge found that
Dmitry's weekly expenses as reported in his financial statements
exceeded his reported income by $525. The judge, however,
awarded alimony of $635 per week, $110 higher than the stated
deficit, to reflect "the increase in uninsured medical expenses
that [Dmitry] will necessarily incur in complying with the
Court's order," which requires Dmitry to undergo regular
treatment. Veronica asserts that the over-all award is
unreasonable and exceeds his needs. A judge has "considerable
discretion" in setting alimony awards, see Hassey v. Hassey, 85
Mass. App. Ct. at 524, and is not bound strictly by the stated
needs of an alimony recipient. See Amrhein v. Amrhein, 29 Mass.
App. Ct. 336, 341 (1990). The decision to award an additional
$110 week was not "plainly wrong [or] excessive," see Redding v.
Redding, 398 Mass. 102, 107 (1986), and "flow[ed] rationally
13
from the findings and rulings." Williams v. Massa, 431 Mass.
619, 631 (2000).8
4. Veronica's income. Veronica contends that the judge
improperly awarded alimony using the same gross income as he
used to calculate her child support obligation. The Alimony
Reform Act (Act) provides, "[w]hen issuing an order for alimony,
the court shall exclude from its income calculation . . . gross
income which the court has already considered for setting a
child support order." G. L. c. 208, § 53(c), inserted by St.
2011, c. 124, § 3. See Zaleski v. Zaleski, 469 Mass. at 242
n.19. Veronica, however, is not obligated to pay child support
by any order of the court, and the judge did not consider the
SSDI payments in awarding alimony.9 We therefore express no
8
Veronica also asserts that certain of Dmitry's expenses,
such as condominium fees, should not have been allowed. At
best, the record reflects factual disputes which were for the
judge to resolve. See W. Oliver Tripp Co. v. American Hoechst
Corp., 34 Mass. App. Ct. 744, 751 (1993) ("If the trial judge
makes one of several possible choices of what facts are
supported by the evidence, the judge's choice is not clearly
erroneous"); Braun v. Braun, 68 Mass. App. Ct. 846, 860 (2007).
The inclusion of forty dollars per week for entertainment and
forty dollars per week for vacations was not excessive, in view
of the parties' prior station in life, and the record evidence
that the wife had taken four vacations, including a vacation
abroad, during the year prior to the trial.
9
Veronica is responsible for payments associated with
supporting the parties' children. The judge subtracted the
private education expenses Veronica incurs on behalf of the
children from her gross income when calculating the alimony
award. The parties do not raise, and we do not decide, the
14
opinion as to the proper interpretation of § 53(c), which is
inapplicable in this case.
Veronica further claims that the judge miscalculated her
income and required her to pay alimony in excess of her income
and expenses. She offers her own calculation, based on the base
gross income of $4,115 per week ($214,000 per year) from her
full-time job. She then subtracts "assumed 30% taxes" from that
amount, based on a chalk prepared by her. Subject to limited
exclusions not applicable here, income for purposes of alimony
is calculated on the basis of gross income, that is, pretax
income. See G. L. c. 208, § 53(b); Zaleski v. Zaleski, supra at
232 n.5. See also Holmes v. Holmes, 467 Mass. at 655 n.2;
C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 156 (2008). The judge
did not err when he considered Veronica's gross income.10
propriety of subtracting education expenses from gross income in
a case where there is no child support order.
10
The judge was not obligated to consider the chalk, which
is not evidence. Aselbekian v. Massachusetts Turnpike Authy.,
341 Mass. 398, 402 (1960). We look to the record on which the
chalk was based. Previous years' tax returns were in evidence,
but Veronica did not make any argument, either below or on
appeal, based on projected taxable income in her new position.
See L.J.S. v. J.E.S., 464 Mass. 346, 350 (2013) (judge should
consider tax consequences arising from judgment where "issue of
tax consequences has been raised and the judge has been provided
with appropriate evidence in the record" [quotation omitted]).
In making her alimony calculations, Veronica also deducted a
number of additional expenses she incurred on behalf of the
children. The judge did not abuse his discretion in choosing
not to deduct these expenses in calculating alimony. See
generally Williams v. Massa, 431 Mass. at 634-635.
15
5. Veronica's ability to pay. Veronica contends that the
alimony award is excessive based on her income and expenses.
See G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3
(alimony is the "payment of support from a spouse, who has the
ability to pay, to a spouse in need of support for a reasonable
length of time, under a court order"). The parties did not
address attribution of income in their submissions to the judge.
The judge's rationale, which attributes an increased earning
capacity to Veronica based on her second job, raised the issue
of increased earning capacity for the first time.11 In the
exercise of our discretion, we address the judge's ruling and
the applicable statutory provisions.
As noted above, at the time of trial Veronica worked full-
time at one hospital, earning $214,000 a year, and part-time at
a rehabilitation center on a per diem basis. There was
11
We requested additional postargument submissions
regarding the judge's order requiring Veronica to work
additional hours at her second job, and the applicability of
G. L. c. 208, § 53(a) & (b), and § 54(b). As discussed below,
this argument is governed by a specific statutory provision.
The judge did not address this provision and neither party
addressed the statutory provision in their appellate briefs in
chief. Dmitry now argues that Veronica waived any argument
concerning § 54(b) on appeal by failing to address it in her
appellate brief. It is the obligation of both parties to bring
controlling legal authority to the attention of the court.
Because alimony is a creature of statute, not common law, Pierce
v. Pierce, 455 Mass. at 293-294, review of the award is confined
to that which the statute authorizes. We therefore exercise our
discretion to consider the governing and dispositive statutory
provision.
16
extensive testimony concerning the second job. In determining
ability to pay, the judge considered both her full-time job and
the part-time job. Both parties submitted proposed findings and
rulings, but neither party brought the governing statutory
authority limiting permissible consideration of a second job to
the judge's attention. See G. L. c. 208, §§ 53-54. The judge
not only took income from the second job into account, he
considered Veronica's ability to work additional hours at the
second job, and attributed that income to her, for purposes of
determining her ability to pay $635 per week in alimony.12
This aspect of the alimony award was in error to the extent
that the judge relied on Veronica's actual and imputed second
income in determining her ability to pay, without consideration
of the presumptions set forth in the Act. Under the Act, income
12
Although Veronica's per diem hours varied each month, the
judge found that if she worked an average of two weekend days
per month, she would earn an average of $521 per week ($27,092
per annum) in additional income. The judge found that the full-
time work combined with the average monthly per diem work, less
stated discretionary expenses, resulted in $471.51 per week
($24,518.52 per year) in income in excess of her discretionary
expenses, an amount which fell $173 short of the $635 that the
judge found Dmitry needed on a weekly basis. The judge sought
to bridge the $173 per week gap, finding that Veronica could
either reduce her expenses or increase her income. Based on the
one month in which she worked seven weekend days, the judge
found that Veronica could work a third weekend day every month
in order to make up the $173 per week difference. In light of
this assessment of her earning capacity, and the fact that she
contributed $375 per week to her retirement fund, the judge
found that Veronica "has the ability to increase her income on a
temporary basis if that is necessary to comply with the Court's
alimony award to [Dmitry]."
17
for purposes of alimony is defined as set forth in the
Massachusetts Child Support Guidelines (guidelines). G. L.
c. 208, § 53(b). The guidelines define income to include
compensation from overtime and a second job. See Massachusetts
Child Support Guidelines § I-B (2009); id. at § I-B (2013).13
However, the Act also provides that "[i]ncome from a second job
or overtime work shall be presumed immaterial to alimony
modification if: (1) a party works more than a single full-time
equivalent position; and (2) the second job or overtime began
after entry of the initial order." G. L. c. 208, § 54(b). The
definition of income in the guidelines contains parallel
language, stating, "[i]f, after a child support order is
entered, a Payor or Recipient obtains a secondary job or begins
to work overtime, neither of which was worked prior to the entry
of the order, there shall be a presumption that the secondary
job or overtime should not be considered in a future support
order." Massachusetts Child Support Guidelines § I-B.
Here, Veronica worked a full-time job. She took a second
job only after the entry of the judgment of divorce. Pursuant
to § 54(b), the presumption of immateriality applies to income
earned from her second job. Accordingly, the alimony award must
13
The guidelines in effect at the time of trial were issued
on January 1, 2009, before the passage of the Act. The
provision concerning income from a second job was unchanged in
the subsequent 2013 guidelines revision.
18
be set aside and the matter remanded to permit the judge to make
findings and rulings regarding the award of alimony in light of
the presumption.
We address those issues necessary to the disposition on
remand. The Act and the guidelines provide that income may be
attributed to a party who "is unemployed or underemployed."
G. L. c. 208, § 53(f), inserted by St. 2011, c. 124, § 3.
Massachusetts Child Support Guidelines § II-H (2009). See id.
at § I-E (2013). Although the judge did not specifically say
so, the judge's ruling in effect concludes that Veronica was
underemployed because she was capable of working more hours --
either more hours two weekend days a month, or working six days
a week, three weeks per month.14 However, the Act must be
construed as a cohesive whole, giving effect to each and every
provision of the statute. See Zaleski v. Zaleski, 469 Mass. at
239. We conclude that a party who works at a full-time or full-
14
Both the 2009 version and the 2013 version of the
guidelines require that a judge considering the question of
underemployment make findings regarding (1) the party's ability
to work and (2) whether the party is earning less than she could
through reasonable effort. See Massachusetts Child Support
Guidelines § II-H (2009); id. at § I-E (2013). Here, the judge
did not make a factual finding that Veronica had failed to use
reasonable efforts to provide support. As discussed above,
Veronica took a new job at a rate of pay equal to or higher than
the rate of pay in her previous full-time position. She
continued to work at the second job on weekends. Due to
Dmitry's disability, she also assumed all of the children's
educational expenses and was the primary physical caretaker of
the children. See ibid. (listing factors to be considered in
determining reasonable effort).
19
time equivalent job may not be found to be "unemployed" or
"underemployed" based on the level of compensation received from
a second job obtained "after entry of the initial order" unless
the judge concludes, based on findings supported by the
evidence, that a basis exists for rebutting the presumption of
immateriality applicable to the income earned from the second
job.
Accordingly, for the reasons stated, the award of alimony
of $635 per week to Dmitry and the alimony-related provisions
are vacated, and the matter is remanded for further proceedings.
The alimony-related provisions, that is, maintenance of life
insurance, attendance at therapy, and reporting attendance at
therapy, shall remain in effect for sixty days, or until such
time as the judge enters a further order, whichever comes first.
The amended judgment of modification is affirmed in all other
respects. The husband's request for attorney's fees on appeal
is denied.
So ordered.