Bernadette D. Roop v. Richard Roop. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-703
BERNADETTE D. ROOP
vs.
RICHARD ROOP.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a twenty-five year marriage, the parties divorced in
2009. As part of a separation agreement that merged into the
judgment nisi, the husband agreed to pay alimony to the wife of
$300 per week on a continuing basis. It is undisputed that the
conditions under which alimony automatically was to terminate
have not occurred. It is also undisputed that the terms of the
Alimony Reform Act, G. L. c. 208, §§ 49-55, do not apply. See
Griffin v. Kay, 101 Mass. App. Ct. 241, 245 (2022).
Accordingly, the agreed-to alimony can be modified only if the
moving party demonstrates a material change in circumstances
warranting such a modification. See Dolan v. Dolan, 99 Mass.
App. Ct. 284, 289 (2021).
The husband had been employed as a contractor. Because of
declining health, he retired when he was sixty-seven or sixty-
eight years old, an age at or after the customary retirement
age. His income therefore has suffered and, on that basis, he
filed a modification complaint seeking a termination or
reduction in his alimony obligations. After trial, a Probate
and Family Court judge ruled in the wife's favor and thereby
left the husband's alimony obligations unchanged. She set forth
her factual findings, legal conclusions, and rationale in a
thoughtful and comprehensive memorandum of decision. We affirm.
The husband does not challenge any of the judge's factual
findings, and the parties in fact stipulated to many of the
underlying facts. The essential question before us then is
whether the judge abused her discretion in concluding that the
husband had not met his burden of demonstrating a material
change of circumstances. See Flor v. Flor, 92 Mass. App. Ct.
360, 363 (2017). We discern no such abuse. While it is true
that the husband's income had declined due to his health-driven
retirement, his overall financial status had improved
significantly in other respects, at least compared to that of
the wife. See Dolan, 99 Mass. App. Ct. at 289 ("In determining
whether a payor has met his or her burden of demonstrating a
material change in circumstances warranting a downward
modification of alimony, it is well settled that a judge must
consider the totality of the payor's financial circumstances,
including his or her income and available assets"). The judge's
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ultimate findings that the wife had a continued need for the
prescribed alimony and that the husband had continued ability to
pay it are amply supported by the record. To the extent that
the husband is correct that he will need to pay alimony by
liquidating assets that he obtained in the original division of
the marital estate, this does not amount to improper "double
dipping." See id. at 289-290.
We affirm the modification judgment that denied the
husband's request to terminate or reduce his alimony
obligations.1
So ordered.
By the Court (Milkey, Blake &
Sacks, JJ.2),
Clerk
Entered: October 6, 2023.
1 We deny the wife's request for an award of appellate attorney's
fees.
2 The panelists are listed in order of seniority.
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