Shaw v. Shaw

99 Mass.App.Ct. 1128

170 N.E.3d 356 (Table)

Arthur T. SHAW

v.Kristine SHAW.

20-P-648

Appeals Court of Massachusetts.

Entered: June 10, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Arthur T. Shaw (husband), appeals from a judgment (modification judgment) that modified the judgment of divorce nisi (divorce judgment), challenging the award of alimony to Kristine Shaw (wife) and the retroactivity of that award. He also appeals from the order denying as untimely his motion to amend. For the reasons that follow, we affirm the modification judgment. We reverse the order denying the husband's motion to amend, and remand the matter for further proceedings consistent with this memorandum and order.

Background. The parties’ divorce ended a marriage of approximately nineteen years during which two children were born. Pursuant to the September 9, 2014 divorce judgment, which incorporated and merged the provisions of the parties’ separation agreement (agreement) pertaining to the children, health insurance, and alimony, the parties agreed that neither would pay child support to the other, and that the husband would be solely responsible for the payment of the children's college expenses. With respect to alimony, Exhibit B to the agreement instructed that:

"5. Neither party shall pay alimony to the other until the first to occur of June 1, 2018; or the date upon which [the youngest child] is no longer a full time undergraduate student or when she resumes permanent residence with the [wife].

"6. The amount of alimony shall be determined by the Court at the time it is payable, and the husband's payment of college expenses shall be considered at the time an alimony order is entered, not including any college loans taken prior to that date.

"7. Alimony shall be paid until as set forth in [ G. L. c. 208, §§ 48 - 54 ]."

On or about April 26, 2018, in anticipation of their youngest daughter's graduation from college, the wife filed a complaint for modification of the divorce judgment seeking an order of weekly alimony under the terms and conditions of the agreement. On December 5, 2019, trial was held on the wife's complaint for modification, at which both parties were represented by counsel and both the husband and the wife testified as to their current income.²

Relying on the parties’ trial testimony and admitted financial statements (both current and at the time of divorce), the judge found that the husband's current weekly income, after certain adjustments,³ was $2,960, and his gross weekly expenses totaled $2,345, giving him "an excess of net weekly income over expenses of approximately $615." The judge also found that the husband's assets had a present value of $295,000, and the husband had approximately $150,000 in liabilities. Based on the foregoing, the judge determined that the husband had the ability to pay alimony to the wife.

In contrast, the judge found the wife's weekly income, after making certain adjustments⁴ and deducting her postdivorce overtime pay, totaled $737. See G. L. c. 208, § 54 (b ) (2) (exclusion of income from postdivorce overtime). Her current weekly expenses, after certain adjustments, totaled approximately $1,471, leaving the wife with a weekly deficit of approximately $714. The wife's assets were valued at $262,500 (including $90,000 in equity from her condominium purchased with proceeds from the husband's buyout of her interest in the marital home), with stated liabilities totaling approximately $42,000. The judge thus determined that the wife was in need of weekly support from the husband. Based on the wife's weekly income deficit and the husband's weekly income surplus (which he had from and after June 1, 2018), the judge determined that the husband had the ability and obligation to pay the wife weekly support to assist her in meeting her needs.

The modification judgment entered on February 14, 2020, ordering the husband to pay to the wife weekly alimony of $400, retroactive to June 1, 2018. The judge determined that under G. L. c. 208, § 49 (b ) (4), the duration of the husband's alimony obligation was 187.5 months, or 15.6 years (eighty percent of the total number of months of the parties’ marriage -- 234.43); neither party disputed the marriage duration calculation, nor was it an issue at trial. As a result of the retroactivity of the alimony order, the husband owed $36,000 in arrears, of which he was required to pay a lump sum of $20,000 by March 27, 2020, and beginning the following week to pay an additional $100 weekly until the remaining $16,000 arrearage was satisfied. The wife was awarded $1,000 in deferred attorney's fees resulting from the husband's failure to timely produce certain discovery.

On March 2, 2020, the husband (acting pro se) filed and served a motion to amend the modification judgment requesting that the judge insert a definitive alimony termination date "to minimize the risk of adverse tax consequences regarding the proper treatment of alimony under the judgment." On April 14, 2020, the judge denied the motion in a margin order that read: "as not timely served per [Mass. R. Dom. Rel. P.] 59 (e)." The husband now appeals from both the modification judgment and the order denying his motion to amend.

Discussion. a. Modification judgment. The husband argues that the judge erred by applying an incorrect standard for determining the parties’ level of income. Specifically, he contends that the judge should have treated the wife's modification complaint to be an initial request for alimony and therefore should not have excluded the wife's postdivorce overtime income from the "basic alimony calculation." Because the husband raises this issue for the first time on appeal, the issue is waived. Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).⁵

The husband also claims that the judge erred in (a) failing to meaningfully consider his payment of the children's college expenses, and (b) making the alimony order retroactive to June 1, 2018. We disagree.

The judge did not abuse her discretion in issuing the alimony order. "A judge has broad discretion when awarding alimony under the" Alimony Reform Act (act). Zaleski v. Zaleski, 469 Mass. 230, 235 (2014). The act defines alimony as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support." G. L. c. 208, § 48. Where, as here, the judge determined that the husband had the ability to pay, the alimony award was then "limited to the [wife]’s need for support." Macri v. Macri, 96 Mass. App. Ct. 362, 367 (2019). Her need for support equated to "the amount necessary to allow her to maintain the lifestyle she enjoyed prior to the termination of the marriage." Young v. Young, 478 Mass. 1, 7 (2017).

Because the parties first contemplated alimony in the divorce judgment, by waiving past and present alimony while reserving the right to seek future alimony upon the first condition to occur of June 1, 2018, or their daughter's college graduation, "the divorce judgment was the initial alimony award, and any subsequent request for alimony should be treated as a complaint for modification." Clemence v. Sklenak, 98 Mass. App. Ct. 646, 648 (2020). "This ‘condition’ [was] the functional equivalent of a stipulation to a material and substantial change in circumstances." Id. at 649. Thus, the judge did not err in determining that the wife proved a material change in circumstances because the conditions for modification agreed to by the parties in the divorce judgment had been met. The judge then properly considered the relevant factors under G. L. c. 208, § 53 (a ), in determining both the form and amount of the alimony award. See Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 773 (2014). In weighing the relevant statutory factors, the judge specifically considered the parties’ marital and current lifestyles and their ability to maintain that lifestyle, in concluding that the wife needed support from the husband due to her net weekly income deficit of $714. See Pierce v. Pierce, 455 Mass. 286, 296 (2009) ; G. L. c. 208, § 53 (b ).

After concluding that an alimony award was warranted, relying on the parties’ respective weekly gross income and expenses, the judge determined the amount of the husband's weekly alimony obligation as $400. The alimony order represented a fifteen percent difference between the parties’ gross incomes. See G. L. c. 208, § 53 (b ). The record supports the judge's findings, and the alimony award "flow[ed] rationally from the findings and rulings." Hassey v. Hassey, 85 Mass. App. Ct. 518, 524 (2014), quoting Williams v. Massa, 431 Mass. 619, 631 (2000). We discern no abuse of discretion.

Furthermore, the judge acted within her discretion in rendering the alimony...