Kernan v. Morse

868 N.E.2d 170

69 Mass. App. Ct. 378

Lawrence KERNAN v. Jane M. MORSE.

No. 06-P-817.

Appeals Court of Massachusetts, Middlesex.

Argued March 5, 2007.

Decided June 20, 2007.

Wendy H. Sibbison for Lawrence Kernan.

Kathleen Ann Foley, Concord, for Jane M. Morse.

Present: GELINAS, COWIN, & GRAHAM, JJ.

GRAHAM, J.

Lawrence Kernan (husband) appeals from an order of the Probate and Family Court granting a motion for summary judgment filed by Jane M. Morse (wife), and dismissing his complaint to modify the divorce judgment. On appeal, the husband contends that the judge erred in granting the wife's motion for summary judgment by basing his decision solely on the husband's current ability to pay the support ordered in the divorce judgment without considering all relevant changed circumstances, including the wife's current ability to provide for her own support. We reverse the order and remand the matter to the Probate and Family Court for further proceedings consistent with this opinion.

1. Background. The parties were married in July, 1984, and were divorced in January, 1999. Two children were born of the union—a son, in 1986, and a daughter, in 1989. At the time of the divorce, the husband, who has undergraduate and graduate degrees from the Massachusetts Institute of Technology, and a masters degree in business administration (M.B.A.) from Harvard Business School, was forty-five years of age and was an investment manager/principal at MDT Advisers, Inc. (MDT), a company that provided asset management for the pension plans of Arthur D. Little, Inc. The husband had worked at MDT since 1991. In 1998, the last full year before the divorce, the husband earned approximately $300,000.¹

At the time of the divorce, the wife was forty-nine years of age, and although she had held positions of responsibility in business in the past (the wife also has an M.B.A.), she had been out of the workforce since 1987 in order to be a full time homemaker and "child rearer." The wife received unearned annual income of approximately $83,000 from an entity known as Big Sandy, LP,² and held interests in certain family trusts. Her weekly expenses amounted to $1,688.93 ($87,824.36 per year). During the marriage the parties enjoyed an "upper middle income" station.

The divorce judge determined that the husband's "employment [was] secure and his economic future [was] reasonably assured" and that he "will have a substantial retirement . . . and can reasonably be expected to receive continued contributions to his retirement." Continuing, the divorce judge found that it was unrealistic to assume that the wife, after years of unemployment, would be able to obtain meaningful employment commensurate with her prior employment history. The divorce judge stated that "it is clear that the Wife will need some assistance from the Husband" (who, the divorce judge noted, would be able to deduct for tax purposes alimony paid by him to the wife). The divorce judge also found that the wife will need "to reinvest some income . . . to augment her retirement."

By the terms of the judgment of divorce nisi, as amended, the parties were awarded joint legal custody of the parties' children with the wife having primary physical custody of the parties' daughter and the husband having primary physical custody of the parties' son. The husband was ordered to pay the wife the sum of $1,000 per week, of which $500 was designated as alimony and $500 as child support.³ In addition, the divorce judge divided the parties' property so that the wife received assets worth at least $1,007,324.86 and the husband received assets worth at least $790,972.50.

By a complaint for modification filed June 3, 2003, the husband sought to reduce his $1,000 weekly support payment to the wife. As grounds for the modification, the husband alleged that he had lost his job at MDT (and had been unemployed since July, 2002), that his sole source of income was from unemployment benefit payments in the amount of $1,124 every two weeks, that he had paid out of pocket the entire cost for health insurance for the parties' two children, and that the parties' daughter now resided equally with each party. Thereafter, the wife filed a motion for summary judgment, which was accompanied by an affidavit of undisputed facts. The husband filed his response to the wife's affidavit together with an affidavit of disputed facts.⁴ A hearing was held before a another probate judge (motion judge) on June 14, 2005.

At the time of the hearing, the husband remained unemployed, though he had been involved in extensive networking in his search for employment. His weekly income, as reflected on his financial statement dated March 15, 2005, was $234, all from dividends and interest. The husband also listed on his March financial statement assets (including his one-half interest in property owned jointly with his new wife) worth $1,501,232; weekly expenses, exclusive of alimony and child support, of $1,495.96; and liabilities amounting to $1,586. The husband's new wife's company had been paying for the family's health insurance, including insurance for the parties' children.

The summary judgment materials indicate that by 2005 the wife had obtained seasonal employment as a guide at a historical society, for which she was paid about $62 per week. Her unearned income from distributions from her interest in Big Sandy, LP, had increased from either $48,664 (see note 2, supra) or $83,000 annually in 1999 to $123,026.80.⁵ In addition, the value of the wife's assets had increased to $1,393,142.21, exclusive of any value attributed to the wife's interest in Big Sandy, LP (see note 2, supra). By 2005, the wife's expenses had decreased modestly to $1,578.55 per week ($82,084 per year).

Finally, notwithstanding the order in the divorce judgment awarding the wife primary physical custody of the parties' daughter (with visitation rights in the husband), the husband stated in his verified response to the wife's affidavit that the daughter had resided with the parties on a fifty-fifty basis for approximately two years prior to the hearing, and although the daughter lived primarily with the wife in May, 2005, she would again split her time equally between both parents during the summer months; her residence was "in a state of flux."⁶

After the hearing,⁷ the motion judge issued a brief memorandum and order in which he noted that the husband's financial statements filed December 1, 2003,⁸ and March 15, 2005, revealed that the husband "had met his expenses (including alimony and child support) and increased his assets during the 15½ month interval between the Financial Statements" (emphasis in original). The motion judge then stated, "[a]s such, the Motion for Summary Judgment is allowed," and dismissed the complaint for modification. The motion judge made no reference in his memorandum to the wife's financial status or to her current ability (if any) to contribute to her own support.

2. Discussion. Rule 56(h) of the Massachusetts Rules of Domestic Relations Procedure (2003) provides that a judge shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party, here the wife, "must `affirmatively demonstrat[e] that there is no genuine issue of material fact on every relevant issue, even if [she] would have no burden on an issue if the case were to go to trial.'" Department of Rev. v. Mason M., 439 Mass. 665, 674, 790 N.E.2d 671 (2003), quoting from Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). In deciding a motion for summary judgment, a court does not resolve issues of material fact, assess credibility, or weigh evidence. See Kelley v. Rossi, 395 Mass. 659, 663, 481 N.E.2d 1340 (1985); Boston Seaman's Friend Soc., Inc. v. Rifkin Mgmt. Inc., 19 Mass.App.Ct. 248, 249, 473 N.E.2d 702 (1985); Kelly v. Brigham & Women's Hosp., 51 Mass.App.Ct. 297, 299 n. 4, 745 N.E.2d 969 (2001). See also McMann v. State Ethics Comm., 32 Mass. App.Ct. 421, 422 n. 2, 590 N.E.2d 693 (1992). With these principles in mind, we consider the husband's complaint for modification.

"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." Greenberg v Greenberg, 68 Mass.App.Ct. 344, 347, 861 N.E.2d 801 (2007), quoting from Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981). "The change may be in the needs or the resources of the parties . . . or in their respective incomes." Fugere v. Fugere, 24 Mass.App.Ct. 758, 760, 513 N.E.2d 226 (1987). Similarly, a child support judgment generally "may be modified on a finding `that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.'" Brooks v. Piela, 61 Mass.App.Ct. 731, 734, 814 N.E.2d 365 (2004), quoting from G.L. c. 208, § 28. See Crowe v. Fong, 45 Mass.App.Ct. 673, 677 & n. 3, 701 N.E.2d 359 (1998) (noting slight difference in certain standards set forth in § 28 and Child Support Guidelines). "In determining whether to modify a support or alimony order, a probate judge must weigh all relevant circumstances," Greenberg v. Greenberg, 68 Mass. App.Ct. at 347, 861 N.E.2d 801, quoting from Schuler v. Schuler, 382 Mass. at 370, 416 N.E.2d 197; see Parrish v. Parrish, 30 Mass.App.Ct. 78, 89, 566 N.E.2d 103 (1991); Croak v. Bergeron, 67 Mass.App. Ct. 750, 755, 856 N.E.2d 900 (2006),⁹ keeping in mind that the fundamental purpose of alimony is to provide economic support to the dependent spouse as measured by the "station" of the parties during the marriage. See Katz v. Katz, 55...