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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.
