Reed v. Reed, 14-P-475

DEBORAH A. REED v. WILLIAM E. REED.

14-P-475

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

April 23, 2015

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

William Reed (husband) appeals from a judgment of divorce, disputing the findings and rationale of the Probate and Family Court judge. We affirm the judgment in most respects, but order the reduction of the alimony awarded to Deborah Reed (wife) from $835 per week to $776.05 per week.

Alimony calculation. "A judge has broad discretion when awarding alimony under the statute." Zaleski v. Zaleski, 469 Mass. 230, 235 (2014). On appeal we determine whether the judge considered all of the relevant mandatory factors set forth in G. L. c. 208, § 53(a), and whether he relied on any irrelevant factors. See Zaleski v. Zaleski, supra at 236; T.E. v. A.O., 82 Mass. App. Ct. 586, 592-593 (2012). So long as the judge has made findings consistent with the statutory factors, and the reasons for the judge's conclusions are apparent from thefindings and rulings, we will not reverse an alimony award or property division unless "plainly wrong and excessive." Redding v. Redding, 398 Mass. 102, 107-108 (1986).

The husband generally challenges the way the judge arrived at the alimony figure. He contends that the judge failed to consult the § 53(a) factors, and instead, based the alimony award solely on G. L. c. 208, § 53(b), inserted by St. 2011, c. 124, § 3, which states that "the amount of alimony should generally not exceed the recipient's need or 30 to 35 percent of the difference between the parties' gross incomes established at the time of the order being issued." Having reviewed the judge's comprehensive findings and rulings, we conclude that the judge correctly applied the law.

As set forth in the judge's amended findings of fact, particularly paragraphs one, four, six, forty-five, forty-eight through sixty-four, sixty-six, seventy-two, and seventy-four, the judge considered the relevant factors set forth § 53(a). Based on these findings, the judge was warranted in selecting the lowest point of the thirty to thirty-five percent income differential formula in § 53(b) to calculate the alimony award.

The husband contends that the judge erred by basing the alimony award on the statutory formula rather than on the wife's "need," which he equates with the difference between her net weekly income and her weekly living expenses. We reject thisargument for two reasons. First, the concept of "need" under § 53(b) is not based on the minimum life necessities of the spouse, but rather is measured by "the amount necessary to support a spouse in a manner consistent with the marital lifestyle." Zaleski v. Zaleski, supra at 242-243. Second, the statute plainly allows a judge to base the alimony award on need or the income differential formula. Hassey v. Hassey, 85 Mass. App. Ct. 518, 525 (2014). An alimony award within the statutory range generally "will be deemed reasonable and lawful." Ibid.

The husband further argues that the alimony award was excessive because the parties' marital lifestyle was based on spending beyond their means. However, the judge carefully accounted for the parties' current finances in determining alimony; moreover, he specifically rejected a thirty-five percent income differential and instead based the alimony on a thirty percent differential. A judge has discretion to exceed the thirty-five percent benchmark on the basis of the parties' marital spending patterns. See Zaleski v. Zaleski, supra at 242-243.

In calculating the husband's income, the judge took into account the periodic distributions, or "draws," the husband receives from his landscaping and construction business, subtracting the husband's contractual payment obligationsnecessary to complete his purchase of a fifty percent ownership share of the business. On appeal, the husband argues that the judge erred by failing to note that his draws from this business, an "S" corporation, are taxable to him individually, so that his income from the draws should have been reduced by an amount sufficient to pay income tax liabilities. The husband did not make this argument in the court below. To the contrary, he argued that the draws were not taxable income at all and thus should have been excluded completely from the calculation of his income. As the husband failed to make this argument below, "the probate judge [was] not bound to grapple with the tax issues." Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 866 (1989).

Finally, the husband argues...